[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9. Election Contests]
[M. Summaries of Election Contests, 1931-72]
[§ 47. Seventy-third Congress, 1933-34]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1110-1140]
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 47. Seventy-third Congress, 1933-34
Sec. 47.1 Bowles v Dingell
On Feb. 9, 1934, Mr. John H. Kerr, of North Carolina, submitted the
report (18) of the Committee on Elections No. 3, in the
election contest of Charles Bowles against John D. Dingell, from the
15th Congressional District of Michigan, in the 73d Congress. On May
12, 1933, the Speaker (19) had laid before the House a
letter (20) from the Clerk transmitting a ``petition and
accompanying letter'' relating to the election of Nov. 8, 1932. The
communication and accompanying papers were referred to the Committee on
Elections No. 3 but not ordered printed.
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18. H. Rept. No. 695, 78 Cong. Rec. 2282, 2292, 73d Cong. 2d Sess.; H.
Jour. 153.
19. Henry T. Rainey (Ill.).
20. 77 Cong. Rec. 3344, 73d Cong. 1st Sess.; H. Jour. 255.
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The summary report related that ``there was no notice of contest
ever filed in said matter, as provided by law,'' and dismissed the
case. The report accompanied House Resolution 260,(21) which
Mr. Kerr offered from the floor as privileged on Feb. 24, 1934. The
resolution was agreed to by the House by voice vote and without debate.
It provided:
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21. 78 Cong. Rec. 3165 73d Cong. 2d Sess.; H. Jour. 202.
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Resolved, That Charles Bowles is not entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Fifteenth Congressional District of the State of Michigan; and be
it further
Resolved, That John D. Dingell is entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Fifteenth Congressional District of the State of Michigan.
Note: Syllabi for Bowles v Dingell may be found herein at Sec. 20.1
(necessity for filing notice of contest).
Sec. 47.2 Brewster v Utterback
During the organization of the House of Representatives of the 73d
Congress on Mar. 9, 1933, Mr. Bertrand H. Snell, of New York, objected
to the oath being administered to the Member-elect, John G. Utterback,
from the Third Congressional District of Maine. Mr. Utterback
(contestee) was then asked by the Speaker,(22) under
[[Page 1111]]
the precedents, to stand aside while other Members-elect and Delegates-
elect were sworn. Thereafter, Mr. Edward C. Moran, Jr., of Maine,
offered from the floor as privileged House Resolution 5,(1)
which stated:
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22. Henry T. Rainey (Ill.).
1. 77 Cong. Rec. 71, 73d Cong. 1st Sess.; H. Jour. 6.
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Resolved, That the Speaker is hereby authorized and directed to
administer the oath of office to the gentleman from Maine, Mr. John
G. Utterback.
Resolved, That Ralph O. Brewster shall be entitled to contest
the seat of John G. Utterback under the provisions of chapter 7,
title 2, United States Code, notwithstanding the expiration of the
time fixed for bringing such contests, provided that notice of said
contest shall be filed within 60 days after the adoption of this
resolution.
In response to the parliamentary inquiry propounded by Mr. Joseph
W. Byrns, of Tennessee, the Speaker stated that under the general
parliamentary law, the rules of the House not having been adopted, Mr.
Moran was entitled to recognition for one hour on the resolution. Mr.
Moran thereupon was granted unanimous-consent permission that time on
the resolution be limited to 20 minutes, to be equally divided and
controlled by himself and Mr. Snell, and that he be permitted to yield
to Mr. Snell for the purpose of offering a substitute to the
resolution.
Mr. Moran related that the state canvassing board, consisting of
the Governor and a seven-man council and responsible for certifying the
election results, were divided four to four on the question of
certification of contestee's election and that contestee (Mr.
Utterback) did not possess a certificate signed by the Governor. Mr.
Moran contended that the Third Congressional District of Maine was
entitled to representation pending contestant's bringing of the contest
as permitted by his resolution.
Mr. Snell then offered his substitute resolution (2)
which provided:
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2. 77 Cong. Rec. 72, 73d Cong. 1st Sess.; H. Jour. 6.
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Resolved, That the papers in possession of the Clerk of the
House in the case of the contested election from the third district
of Maine, be referred to the Committee on Elections No. 1, with
instructions to report on the earliest day practicable who of the
contesting parties is entitled to be sworn in as sitting Member of
the House.
Mr. Snell contended that the House should not recognize the prima
facie right of contestee to a seat by permitting him to take the oath
absent a certificate of election required by the House and by
[[Page 1112]]
the laws of Maine. Mr. John W. McCormack, of Massachusetts, cited
several precedents wherein the House had permitted Members-elect to
take the oath of office ``when the House was satisfied that the man was
elected.'' Mr. Snell claimed that the election was still in dispute.
Upon his demand, the yeas and nays were ordered on his substitute,
which was defeated by 105 yeas to 296 nays. The resolution seating Mr.
Utterback was thereupon agreed to by voice vote, after which he
appeared at the bar of the House and took the oath of office,
confirming the seating of the contestee.
The report of the Committee on Elections No.. 3 was submitted by
Mr. Clark W. Thompson, of Texas, on May 22, 1934. Minority views of Mr.
Randolph Perkins, of New Jersey, accompanied the report. (On Mar. 6,
1934, the Speaker had laid before the House a letter (3)
from the Clerk transmitting the contest, original testimony and other
papers, and had referred it to the committee.)
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3. 78 Cong. Rec. 3874, 73d Cong. 2d Sess.; H. Jour. 237.
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The report related that in the ``regular state election'' held on
Sept. 12, 1932, contestee (Utterback) had received 34,520 votes to
34,226 votes for contestant and 213 votes for one Carl S. Godfrey, a
plurality of 294 votes for contestee. Contestant alleged that in 16 of
the voting precincts comprising the district, the fraudulent or
negligent failure of election officials to perform their duties as
required by state law was sufficient to void all votes cast in those
precincts and therefore to establish a remaining plurality of votes for
contestant. From the minority views of Mr. Perkins, it appears that
contestant was claiming that election officials had neglected to
provide voting booths in those precincts, that in other precincts
ballots contained identical markings made by the same hand, that in
another more ballots had been cast than there were voters, and that in
yet another precinct officials had illegally permitted and assisted
unqualified voters to cast ballots.
The committee report accepted as binding an advisory opinion of the
Supreme Court of Maine rendered to the Governor and his executive
council. That opinion advised that in two of the 16 contested precincts
ballots should be discounted for failure of election officials to
perform certain duties made mandatory by state law. The committee,
assuming the validity of that opinion, found that contestee's plurality
would then
[[Page 1113]]
be reduced to 74. The committee then made the further assumption that
``the advisory board did not think that there was sufficient evidence
to disturb the returns from the other 14 precincts complained of by the
contestant.'' As to those 14 precincts, the committee determined ``that
there was not sufficient evidence of legal fraud or intentional
corruptness to justify the committee to recount the ballots of those
precincts or to justify the committee in sustaining the contestant's
contentions.''
Contestant evidently abandoned his allegations of fraud during the
committee hearings, and relied upon proof of negligence and
irregularities by officials to support his contest. On these grounds,
the committee summarily sustained the court advisory opinion and
refused to ``disfranchise the voters in the 16 precincts . . . because
of some alleged breach of official duty of the election officers.''
Mr. Perkins contended ``that the provisions of voting booths as
required by state law is a mandatory requirement and that in their
absence the vote must be rejected'' [citing In re Opinions of the
Justices, 124 Me. 474, 126 A. 354 (1924)]. In one precinct where voting
booths were not employed, he cited as ``undisputed'' that 159 of 163
votes for contestee had been marked by a single election official.
Citing Yost v Tucker (2 Hinds' Precedents Sec. 1078), Mr. Perkins
argued that the House should follow a state court interpretation that a
particular state law is a mandatory requirement. Mr. Perkins further
contended that there was much corroborative evidence in support of
contestant's particular allegations.
Mr. Thompson called up House Resolution 390 (4) as
privileged on May 28, 1934. The resolution, which was agreed to by
voice vote and without debate, provided:
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4. 78 Cong. Rec. 9760, 73d Cong. 2d Sess.; H. Jour. 587.
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Resolved, That Ralph O. Brewster is not entitled to a seat in
the House of Representatives of the Seventy-third Congress from the
Third Congressional District of the State of Maine; and further
Resolved, That John G. Utterback is entitled to a seat in the
House of Representatives in the Seventy-third Congress from the
Third Congressional District of the State of Maine.
Note: Syllabi for Brewster v Utterback may be found herein at
Sec. 4.2 (House power over administration of oath to candidate in
election contests); Sec. 5.14 (advisory opinions on state law);
Sec. 9.2 (certificates of election); Sec. 10.13 (violations and errors
by officials as
[[Page 1114]]
grounds for contest); Sec. 20.2 (notice of contest filed late);
Sec. 38.1 (voter intention as paramount concern in interpreting
ballot).
Sec. 47.3 Casey v Turpin
Mr. John H. Kerr, of North Carolina, submitted the report
(5)~ of the Committee on Elections No. 3 on Mar. 12, 1934,
in the election contest of John J. Casey against C. Murray Turpin from
the 12th Congressional District of Pennsylvania. On Jan. 5, 1934, the
Speaker (6)~ had laid before the House a letter
(7)~ from the Clerk transmitting a copy of the notice of
contest and reply with the statement that no testimony had been
received within the time prescribed by law and that the contest
apparently had abated. The Speaker had referred that communication to
the Committee on Elections No. 3.
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5. H. Rept. No. 930, 78 Cong. Rec. 4359, 4360, 73d Cong. 2d Sess.; H.
Jour. 252.
6. Henry T. Rainey (Ill.).
7. 78 Cong. Rec. 137, 73d Cong. 2d Sess.; H. Jour. 28.
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On Feb. 2, 1934, the Speaker laid before the House a letter
(8)~ from the Clerk transmitting a letter from contestant
which stated that the commissioner before whom testimony had been taken
in his behalf ``has failed to forward this testimony to the Clerk of
the House of Representatives in accordance with law, and
notwithstanding attempts to have her comply with the provisions of this
statute, she has, up to the present date, failed to do so.'' Contestant
requested the Clerk or the House to require the production of such
testimony. The Clerk's communication, together with the contestant's
request, was referred to the Committee on Elections No. 3 and ordered
printed as a House document.
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8. H. Doc. No. 237, 78 Cong. Rec. 1854, 73d Cong. 2d Sess.; H. Jour.
123.
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The committee report stated that ``there was no evidence before the
committee of the matters charged in his notice of contest, and no
briefs filed, as provided by law.'' The committee dismissed the contest
for lack of such evidence and for failure of contestant to appear in
person to show cause why his contest should not be dismissed.
The committee report accompanied House Resolution
345,(9)~ which Mr. Kerr called up as privileged on Apr. 20,
1934. Mr. Kerr immediately moved the previous question, and the
resolution was agreed to by voice vote and without debate. House
Resolution 345 provided:
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9. 78 Cong. Rec. 7082, 73d Cong. 2d Sess.; H. Jour. 424.
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Resolved, That John J. Casey is not entitled to a seat in the
House of Rep
[[Page 1115]]
resentatives of the Seventy-third Congress from the Twelfth
Congressional District of the State of Pennsylvania.
Resolved, That C. Murray Turpin is entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Twelfth Congressional District of the State of Pennsylvania.
Note: Syllabi for Casey v Turpin may be found herein at Sec. 15.1
(failure to take testimony within prescribed time); Sec. 29.1 (failure
to produce testimony); Sec. 33.1 (cause for dismissal); Sec. 33.2
(order to appear).
Sec. 47.4 Chandler v Burnham
Mr. Joseph A. Gavagan, of New York, submitted the report
(10)~ of the Committee on Elections No. 2 on Apr. 19, 1934,
in the election contest brought by Claude Chandler against George
Burnham from the 20th Congressional District of California. The Speaker
(11)~ had referred the contest to that committee on Jan. 16,
1934, on which date he had laid before the House a letter
(12~) from the Clerk transmitting the contest, original
testimony, and relevant papers.
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10. H. Rept. No. 1278, 78 Cong. Rec. 6971, 73d Cong. 2d Sess.; H. Jour.
419.
11. Henry T. Rainey (Ill.).
12. 78 Cong. Rec. 760, 73d Cong. 2d Sess.; H. Jour. 64.
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In the election for Representative held Nov. 8, 1932, the official
returns gave a plurality of 518 votes to contestee from a total of
87,061 votes cast.
Contestant served timely notice of contest on Dec. 19, 1932,
alleging that ``he had received a majority of all the lawful votes
cast''; that election officials had rejected ``void, spoiled,
mutilated, or marked'' ballots cast for him; that there were deviations
in the number of ballots delivered to and the number accounted for in
some of the precincts; that many used ballots were unaccountably
missing from the ballot boxes; and ``that by reason of frauds,
irregularities, and substantial errors, many votes counted for the
contestee should have been counted for the contestant.'' The committee,
while not dismissing the contest for failure of contestant to state
with particularity the basis of his contest and the names and frauds
alleged, stated that contestant's notice of contest had been
insufficient in this respect and would under other circumstances be
grounds for sustaining contestee's motion to dismiss.
In testimony and in his brief before the Committee on Elections No.
2, contestant alleged that in 14 precincts the combination of
violations of election laws by officials through illegal counting,
invalid compositions of election
[[Page 1116]]
boards, unsworn officials, and unattested tally sheets and the
condition of ballots and envelopes containing ballots should ``warrant
the rejection of the returns in total.''
The committee determined that contestant ``failed to establish
fraud, deceit, conspiracy, or connivance on the part of the contestee
or any election board, official clerk, or employee.'' In arriving at
this determination, the committee was guided by the following
postulates:
1. The official returns are prima facie evidence of the
legality and correctness of official action.
2. That election officials are presumed to have legally
performed their duties.
3. That the burden of coming forward with evidence to meet or
resist these presumptions rests with the contestant.
4. That fraud is never presumed, but must be proven.
5. That the mere closeness of the result of an election raises
no presumption of fraud, irregularities, or dishonesty.
The committee considered the distinction between ``mandatory''
election laws, which confer the right of suffrage by voiding an
election unless certain procedures are followed, and ``directory''
statutes, which fix penalties for violation of procedural safeguards
but do not void an election for noncompliance. The committee determined
that contestant had alleged violations of ``directory'' statutes, ``a
departure from which will not vitiate an election, if the
irregularities do not deprive any legal voter of his vote, or admit an
illegal vote, or cast uncertainty on the result, and has not been
occasioned by the agency of a party seeking to derive benefit from
them.'' The committee, while recognizing its power to reject entire
groups of ballots as requested by contestant, stated that such power
would only be exercised ``where it is impossible to ascertain with
reasonable certainty the true vote.''
Specifically, the committee rejected contestant's claim that
ballots in five precincts should be voided because election boards and
precinct officials had not been sworn, finding that all such officials,
other than inspectors, had subscribed to the required oath, and citing
cases in support of the rule that an election will not be invalidated
based on such failure, the acts of election officials acting under
color of office being binding.
Contestant alleged ``that by reason of a recount of approximately
one third of the ballots cast'' he had been elected. State law did not
provide machinery for conducting a recount. Contestant
[[Page 1117]]
claimed that during the taking of testimony under subpena, at which the
ballots cast had been examined in the presence of both parties and
their counsel, he had kept a tally of votes cast, including the very
ballots he was declaring to be ``marked, mutilated, or identified, and
void, irregular, or otherwise improper ballots,'' and that this tally
was sufficient to overcome contestee's plurality. As contestee had not
known that contestant was conducting such tally, and was not given the
opportunity to identify the ballots tallied, the committee ruled that
``the testimony of the contestant in this respect is uncorroborated and
constitutes a self-serving declaration wholly inadmissible in evidence
and of no legal probative value.'' The committee therefore ruled out
evidence concerning the tally, as well as the tally itself.
The report commented that contestant had made contradictory
allegations on the one hand that an examination of the ballots as shown
by his tally indicated that he had been elected, on the other hand
``that the ballots were not preserved and returned in the manner
required by law.'' The committee ruled that ``these dual contentions
cannot be maintained . . . they cannot be asserted legal for one
purpose and illegal for another.''
On May 15, 1934, Mr. Gavagan called up as privileged House
Resolution 386 (13) which was agreed to by voice vote and
without debate, and which provided:
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13. 78 Cong. Rec. 8921, 73d Cong. 2d Sess.; H. Jour. 543.
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Resolved, That George Burnham was elected a Representative in
the Seventy-third Congress from the Twentieth Congressional
District of California and is entitled to a seat as such
Representative.
Note: Syllabi for Chandler v Burnham may be found herein at
Sec. 5.11 (election committee's power to examine and recount disputed
ballots); Sec. 10.10 (distinctions between mandatory and directory
state laws); Sec. 10.14 (violations and errors by officials); Sec. 22.2
(failure to state grounds with particularity); Sec. 36.4 (official
returns as presumptively correct); Sec. 36.11 (effective closeness of
result); Sec. 37.21 (ballot tallies); Sec. 42.5 (resolution disposing
of contest as privileged).
Sec. 47.5 In re Ellenbogen
On Mar. 11, 1933, the Speaker (14) laid before the House
a letter (15) from the Clerk transmitting a memorial and
accompanying papers filed by Harry E. Estep (a former Representative),
[[Page 1118]]
challenging the citizenship qualifications of Henry Ellenbogen, a
Representative-elect from the 33d Congressional District of
Pennsylvania. That communication and accompanying papers were referred
to the Committee on Elections No. 2 (not ordered printed).
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14. Henry T. Rainey (Ill.).
15. 77 Cong. Rec. 239, 73d Cong. 1st Sess., H. Jour. 66.
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The signed report (16) of the Committee on Elections No.
2, to accompany House Resolution 370, was submitted by Mr. Joseph A.
Gavagan, of New York, on May 1, 1934. The report related the following
undisputed facts:
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16. H. Rept. No. 1431, 78 Cong. Rec. 7873, 7876, 73d Cong. 2d Sess.; H.
Jour. 479.
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1. That Mr. Ellenbogen (respondent), was born in Vienna, Austria on
Apr. 3, 1900, declared his intention to become a United States citizen
on May 19, 1921, and was admitted to citizenship on June 17, 1926;
2. That respondent was elected a Representative on Nov. 8, 1932, at
that time being a citizen for six years, five months;
3. That upon commencement of the first session of the 73d Congress
(convened by Presidential proclamation) on Mar. 9, 1933, respondent had
been a citizen for six years, eight and one-half months and did not
take the oath of office;
4. That upon commencement of the second session of the 73d Congress
on Jan. 3, 1934, respondent, then a citizen for seven and one-half
years, took the oath of office;
5. That on Dec. 3, 1933, the date specified by article I, section
4, clause 2 of the Constitution for convening of the 73d Congress
(which provision had not been superseded by the 20th amendment on the
date of respondent's election) respondent would have been a citizen for
seven years, five months.
Article I, section 2, clause 2 of the Constitution provides:
No person shall be a Representative who shall not have attained
to the age of twenty-five years and been seven years a citizen of
the United States, and who shall not, when elected, be an
inhabitant of that State in which he shall be chosen.
The committee determined the central issue to be ``as of what date is
the seven year citizenship qualification for Representative provided
for in section 2 above, to be determined?'' Of particular interest was
whether the Constitution requires seven years' citizenship prior to
election, prior to the date on which the term commences, or prior to
the time when the Member-elect is sworn. As the committee could not
base its decision on an exact case in point, the committee resorted to
``rules of constitutional and statutory construction, constitutional
history,
[[Page 1119]]
the rules of syntax, and prior interpretations of related but not
identical sections of the Constitution.''
Employing first a syntax analysis, the committee determined that
the words ``when elected'' in the second clause of section 2 modified
the word ``person'' in the first clause only with respect to the
subject of the second clause, i.e., habitancy, and that such words had
no relation to the words ``shall not have'' and ``been'' in the first
clause.
Examining next the history of section 2 at the Constitutional
Convention and citing two preliminary drafts submitted at the
convention, the committee concluded that ``the intent of the framers
(was) to require only habitancy `when elected', the present section 2
leaving out `before the election' from the citizenship [requirement] in
the second draft.'' The committee studied the reasons expressed in the
debates at the convention for each of the three qualifications in
section 2, concluding that the age and citizenship qualifications could
only reasonably apply to Members (to assure maturity and loyalty),
``hence dates of elections need not be controlling.''
Asserting that the age and citizenship requirements of section 2
were inserted with similar intent by the convention, the committee
proceeded to cite precedents construing the age requirement for
Representatives or Senators as demanding attainment of the required age
when sworn and not when elected or at the commencement of term. The
committee then construed section 2 itself as distinguishing between
Representatives-elect in the second clause and Representatives who must
in addition meet the qualifications of the first clause, and cited
Hammond v Herrick (1 Hinds' Precedents Sec. 499) for the proposition
that election does not, of itself, constitute membership, ``although
the period may have arrived at which the congressional term
commences.'' As well, the committee reasoned that constitutional
language requiring Congress to assemble the first Monday of December
unless they by law appointed a different day indicated that the framers
did not intend that age and citizenship requirements must be met at a
fixed time.
The committee drew a further analogy from article I, section 6 of
the Constitution, which prohibits a Member of Congress from ``holding
any office under the United States.'' The report extensively cited
Hammond v Herrick, in
[[Page 1120]]
which the House had construed that provision to require Members of
Congress to divest themselves of incompatible offices before they are
sworn, as foreseen dangers of executive control ``could materialize
only in a Member.'' The committee report in the Hammond v Herrick
memorial matter stated:
. . . Neither do election and return create membership. These
acts are nothing more than the designation of the individual, who,
when called upon in the manner prescribed by law, shall be
authorized to claim title to a seat. This designation, however,
does not confer a perfect right; for a person may be selected by
the people, destitute of certain qualifications, without which he
cannot be admitted to a seat.
The Committee report concluded:
[A] plain reading of section 2 of the Constitution of the
United States, the historical background of the section as
exemplified by the debates in the Constitutional Convention, the
objects sought to be accomplished by the requirements of the
section, and the decisions of the committees of this House in
analogous cases all compel an interpretation of the citizenship
qualification of section 2 as to require 7 years of citizenship at
the time when the person presents himself to take the oath of
office.
On June 16, 1934 (legislative day of June 15), Mr. Gavagan called
up House Resolution 370 (17) as privileged. The resolution,
which was agreed to by voice vote and without debate, declared:
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17. 78 Cong. Rec. 12193, 73d Cong. 2d Sess.; H. Jour. 818.
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Resolved, That when Henry Ellenbogen, on January 3, 1934, took
the oath of office as a Representative from the Thirty-third
Congressional District of the State of Pennsylvania, he was duly
qualified to take such oath; and be it further
Resolved, That said Henry Ellenbogen was duly elected as a
Representative from the Thirty-third District of Pennsylvania, and
is entitled to retain his seat.
Note: Syllabi for In re Ellenbogen may be found herein at Sec. 6.5
(items transmitted by Clerk); Sec. 9.4 (citizenship); Sec. 17.3
(alternatives to statutory election contests).
Sec. 47.6 Ellis v Thurston
The report (18) of the Committee on Elections No. 1 was
submitted by Mr. Homer C. Parker, of Georgia, on Apr. 23, 1934, in the
election contest brought by Lloyd Ellis against Lloyd Thurston from the
Fifth Congressional District of Iowa. The contest had been referred to
that committee on Feb. 19, 1934, on which date the Speaker
(19) had laid before the House a letter (20) from
the Clerk
[[Page 1121]]
transmitting the contest, original testimony and accompanying papers.
The Clerk's communication had been ordered printed (not designated as a
House document).
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18. H. Rept. No. 1305, 78 Cong Rec. 7186, 7190, 73d Cong. 2d Sess.; H.
Jour. 431.
19. Henry T. Rainey (Ill.).
20. 78 Cong. Rec. 2769, 73d Cong. 2d Sess.: H. Jour. 178.
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The official returns gave contestee 51,909 votes to 51,732 votes
for contestant, a majority of 177 votes for contestee. On Jan. 26,
1933, the parties to the contest agreed in writing to conduct a
complete recount of votes, which showed contestant to have received
50,715 votes and contestee to have received 51,334 votes, a majority of
619 votes for contestee. The report stated that an additional 4,821
``disputed'' votes ``were not counted by the election judges for either
contestant or contestee'' and that 4,339 votes ``were conceded to be no
vote for either contestant or contestee.''
Issues and findings of the 4,821 disputed ballots, contestant
conceded that 1,575 ballots had been properly voided by election judges
as not having been cast in conformity with state law, but contended
that ``the voters intended 1,000 of these ballots to be for Mr. Ellis
and 575 for contestee, and should be included in the count.'' The
committee report, assuming the validity of contestant's argument, found
that contestee would retain a 194-vote majority.
The report then considered the remaining 3,246 disputed votes in
three categories. In his brief, contestant claimed that on 321 ballots
which had been cast only for Presidential and Vice Presidential
candidates, 250 had been cast for his party nominee and 71 for
contestee's party nominee. Assuming that the parties should be
respectively credited with such votes, the committee found contestee's
majority to be 15 votes.
Again considering the figures given by contestant in his brief, the
report cited 142 ballots marked for Presidential and Vice Presidential
candidates of contestant's (Democratic) party and marked for candidates
of the Republican party for other offices, but not marked for the
office of Representative, as well as 13 ballots marked in contrary
manner for the Presidential candidate of contestee's (Republican)
party, with splits for certain Democratic candidates, but not marked
for Representative. Finally, the report cited contestant's figures that
of the remaining 2,770 disputed ballots, 2,164 had been marked for
contestant's party candidate for President and Vice President and also
marked for candidates of both parties for other offices, but not marked
for Representative. By claiming all the ballots that were cast for the
Presidential nominee
[[Page 1122]]
of his party, but which indicated no choice for Representative, and by
claiming 1,000 of the 1,575 ballots found void under state law,
contestant urged in his brief that he was entitled to the seat from the
Fifth Congressional District of Iowa.
The report quoted the pertinent sections of Iowa law prescribing
the manner of voting, and then concluded that ``the figures given by
the contestant in his brief do not warrant a decision in his favor.''
The committee ruled that voters in marking the squares opposite the
Presidential and Vice Presidential candidates did not intend to vote a
straight-party ticket, as the statute provided that a cross be placed
in a separate party circle in order to cast such vote. The committee
rejected contestant's claim that ``the intent of the voter should be
given effect regardless of local Iowa laws,'' holding rather that--
. . . [T]o presume now that the voters intended to vote
otherwise than as expressed by their marked ballots would be to
indulge in a presumption not justified in law or facts. We cannot
assume that because voters voted for Roosevelt, or Hoover, who
headed the respective tickets, that they intended to vote also for
the candidates for Congress toward whom the voters indicated their
neutrality.
Mr. Parker offered House Resolution 359 (1) from the
floor as privileged on Apr. 25, 1934. The resolution, agreed to by
voice vote and without debate, provided:
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1. 78 Cong. Rec. 7371, 73d Cong. 2d Sess.; H. Jour. 440, 441.
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Resolved, That Lloyd Ellis was not elected a Representative in
the Seventy-third Congress from the Fifth Congressional District of
the State of Iowa, and is not entitled to a seat as such
Representative.
Resolved, That Lloyd Thurston was elected a Representative in
the Seventy-third Congress from the Fifth Congressional District of
the State of Iowa, and is entitled to a seat as such
Representative.
Note: Syllabi for Ellis v Thurston may be found herein at Sec. 12.5
(balloting irregularities); Sec. Sec. 37.6, 37.8 (interpretations of
``straight ticket'' votes).
Sec. 47.7 Felix v Muldowney
On Mar. 14, 1934, the Speaker (2) laid before the House
a letter (3) from the Clerk transmitting the contest
instituted by Anne E. Felix against Michael J. Muldowney from the 32d
Congressional District of Pennsylvania. That communication, containing
also original testimony and other accompanying papers, was referred to
the Committee on Elections No. 2 and ordered printed.
---------------------------------------------------------------------------
2. Henry T. Rainey (Ill.).
3. 78 Cong. Rec. 4508, 73d Cong. 2d Sess.; H. Jour. 259.
---------------------------------------------------------------------------
The Committee on Elections No. 2 did not submit a report relating
[[Page 1123]]
to this election contest during the 73d Congress, and the House took no
other action with respect to the contest.
Note: Syllabi for Felix v Muldowney may be found herein at
Sec. 43.13 (failure of committee to submit report on contest).
Sec. 47.8 Fox v Higgins
Mr. Randolph Perkins, of New Jersey, submitted the report
(4) of the Committee on Elections No. 3 on Mar. 10, 1934, in
the election contest brought by William C. Fox against William L.
Higgins from the Second Congressional District of Connecticut. The
Speaker (5) had referred the contest to that committee on
Jan. 5, 1934, on which date the Clerk had transmitted to him the notice
of contest, original testimony and accompanying papers relative to the
contest. The Speaker had ordered the Clerk's communication
(6) printed (not designated as a House document).
---------------------------------------------------------------------------
4. H. Rept. No. 894, 78 Cong. Rec. 4185, 4223, 73d Cong. 2d Sess.; H.
Jour. 247.
5. Henry T. Rainey (Ill.).
6. 78 Cong. Rec. 136, 73d Cong. 2d Sess.; H. Jour. 28.
---------------------------------------------------------------------------
In 56 of the 62 towns or voting districts comprising the Second
Congressional District of Connecticut the ``Australian ballot,'' by
which voters could vote a ``straight ticket'' by marking an ``X'' in
the circle above a party column, was employed as the official ballot.
State law voided ballots marked with an ``X'' in more than one party
circle. The report stated that the committee had no evidence as to the
total number of ballots rejected for this reason in the 56 towns or
elections districts, but that contestant had introduced evidence that
in 28 of those districts 624 ballots were rejected for duplicity of
voting.
Contestant's witnesses (election officers) testified that the term
``Wet Party'' appeared adjacent to the column designated as ``Repeal,
eighteenth amendment, Yes and No'' on these ballots; that 447 of them
had been marked both in contestant's ``straight ticket'' Democratic
circle and in the ``Wet Party'' circle; and that 147 had been marked in
contestee's ``straight ticket'' Republican circle and in the ``Wet
Party'' circle. Contestant requested the committee to credit him with
the 300-vote differential, which, when taken from contestee's official
plurality of 221 votes, would establish contestant as having been
elected by 79 votes.
Contestant contended that ``by reason of the juxtaposition of the
`Wet Party' column and the `repeal
[[Page 1124]]
of the eighteenth-amendment' column, voters were confused and voted
their straight-party affiliations and then, through confusion,
intending to vote for repeal, voted in the `Wet Party' circle, and thus
vitiated their ballots.'' Contestant also alleged that contestee, in
his capacity as secretary of state, had intentionally caused such
confusion by preparing the ballots, and that contestee had induced one
Michael H. Rollo to become a candidate for Congress with the party
platform and designation of ``Wet Party'' so as to confuse the electors
and vitiate their ``Straight-ticket'' votes.
The committee found no evidence to justify it in reporting that the
official count of the votes was incorrect. The committee also stated
that contestant had produced no evidence that Mr. Rollo's candidacy was
in any way procured or induced by the contestee or by anyone in his
behalf. Mr. Rollo, called as a witness before the committee by
contestant, testified that his candidacy had not been solicited by
contestee.
The committee found that though ``it is not improbable that some
voters were confused,'' the evidence showed that the ballots had been
prepared according to law by a deputy secretary of state who had placed
the ``Wet Party'' last on the ticket in the Second District because it
was only being voted on in that district and not statewide. The
evidence also showed that the parties to be voted on statewide were
listed first, followed by the names of the local parties on certain
ballots that were printed separately. The committee found that
contestee, as secretary of state, had not ``designedly caused the
ballots to be printed in order to create confusion, or for the purpose
of obtaining an advantage as a can-
didate. . . .''
The committee found, consistent with contestant's admission, that
``the ballots which were rejected should have been rejected'' under
state law prohibiting voting for more than one ``straight ticket.''
Five witnesses testified that they had intended to vote their regular
party affiliation and, for repeal, and had mistakenly voted for the
``Wet Party.'' The report stated that ``this was not the case of an
ambiguous or doubtful ballot, where the committee can look at the
circumstances surrounding the election explaining the ballot, and get
at the intent and real act of the voter.'' Rather, as the ballots had
been marked for Mr. Rollo as well as for other candidates, the
committee could not
[[Page 1125]]
determine whether voters had intended to vote for Mr. Rollo and
otherwise for a straight Republican or Dermocratic ticket, or to cast a
straight vote for contestant's (Democratic) ticket or contestee's
(Republican) ticket and for repeal of the 18th amendment. The committee
found the question of intention of the voters of the rejected ballots
to be a matter of conjecture, and the evidence before the committee in
this respect to be ``wholly unreliable.''
The committee report accompanied House Resolution
296,(7) which was called up as privileged by Mr. Clark W.
Thompson, of Texas, on May 28, 1934. The resolution, which was agreed
to by voice vote and without debate, provided:
---------------------------------------------------------------------------
7. 78 Cong. Rec. 9760, 73d Cong. 2d Sess.; H. Jour. 587.
---------------------------------------------------------------------------
Resolved, That William C. Fox is not entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Second Congressional District of the State of Connecticut.
Resolved, That William L. Higgins is entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Second Congressional District of the State of Connecticut.
Note: Syllabi for Fox v Higgins may be found herein at Sec. 11.1
(confusing the voters as grounds for contest); Sec. 12.6 (balloting
irregularities); Sec. 37.1 (ambiguous ballots); and Sec. 38.3 (voter
intention as paramount concern in interpreting ballot).
Sec. 47.9 Gormley v Goss
On Mar. 13, 1934, Mr. Joseph A. Gavagan, of New York, submitted the
report (8) of the Committee on Elections in the election
contest brought by Martin E. Gormley against Edward W. Goss from the
Fifth Congressional District of Connecticut. The Speaker (9)
had referred the contest to that committee on May 9, 1933, on which
date the Clerk had transmitted to him the notice of contest, original
testimony, papers, and documents relative to the contest. The Speaker
had ordered the Clerk's communication printed.(10)
---------------------------------------------------------------------------
8. H. Rept. No. 893, 78 Cong. Rec. 4035, 73d Cong. 2d Sess.; H. Jour.
244.
9. Henry T. Rainey (Ill.).
10. 77 Cong. Rec. 3085, 73d Cong. 1st Sess.; H. Jour. 245, 246.
---------------------------------------------------------------------------
According to the official returns of the election held Nov. 8,
1932, contestee received 42,132 votes to 42,054 votes for contestant--a
majority of 78 votes for contestee.
Contestant alleged that through ``fraud, irregularities,
corruption, and deceit'' on the part of contestee's agents at voting
booth No. 1 in the third voting precinct
[[Page 1126]]
in the city of Waterbury, he was ``deprived of many votes far in excess
of the number of votes necessary to overcome contestee's majority.''
Contestee requested dismissal of the allegations raised in the
notice of contest on the ground that they were ``vague and uncertain
and were lacking in necessary particulars'' as required by statutes (2
USC Sec. 201). The committee heard argument as to the sufficiency of
the notice of contest, and agreed that contestant's notice of contest
did not meet the requirements of the statute.
The committee considered the evidence in the case following the
``postulates'' that:
1. The official returns are prima facie evidence of the regularity
and correctness of official action.
2. That election officials are presumed to have performed their
duties loyally and honestly.
3. The burden of coming forward with evidence to meet or resist
these presumptions rests with the contestant.
Witnesses who had voted in the precinct in question testified that
the moderator of the voting district, Thomas Summa, ``on occasions was
seen to stick his head into the voting booth and on some occasions to
enter the said booth'.''
Considering all the testimony relating to booth No. 1 in the third
voting precinct, the committee found that ``confusion existed'' with
regard to voting on the question of ``the repeal or maintenance of the
eighteenth amendment,'' and as to this question's placement on the
voting machine. The committee further found that many voters were
seeking information in this respect and ``were given assistance and
attention''; and that there were no complaints made to the nonpartisan
election board as to ``irregularity, interference, or fraud.'' Of all
witnesses called, none testified that any of the votes cast were
fraudulently obtained by the contestee, and further that the intent of
the voter was not vitiated by any interference with the keys on the
voting machine.
Contestant alleged that Mr. Summa conspired with contestee to
influence voters in the booth by putting his head inside the curtain,
speaking to the voters, or entering the booth. This thesis the
committee rejected on the basis that they would have to ignore the fact
that ``the polling place in question was in charge of a bipartisan
election board'' and arbitrarily assume ``that the Democratic members
thereof were either deaf, dumb, and blind, or willfully corrupt
conspirators.'' Deciding that such conclusion ``would
[[Page 1127]]
be arbitrary, unjust, and unworthy of a judicial body,'' the committee
concluded instead that:
. . . [T]he contestant has failed to establish the allegations
contained in the notice of contest, has failed by a fair
preponderance of the evidence to establish any fraud, deceit, or
conspiracy on the part of the contestee and the election official
or officials engaged in the election in question.
The committee report accompanied House Resolution
346,(11) which was called up as privileged by Mr. Gavagan on
Apr. 20, 1934. The resolution, which was agreed to by voice vote and
without debate, provided:
---------------------------------------------------------------------------
11. 78 Cong. Rec. 7087, 73d Cong. 2d Sess.; H. Jour. 424.
---------------------------------------------------------------------------
Resolved, That Edward W. Goss vas elected a Representative in
the Seventy-third Congress from the Fifth Congressional District in
the State of Connecticut and is entitled to a seat as such
Representative.
Note: Syllabi for Gormley v Goss may be found herein at Sec. 12.1
(voter confusion as excuse for official's entering booth); Sec. 22.1
(failure to state grounds with particularity); Sec. 36.5 (official
returns as presumptively correct); Sec. 42.2 (resolution disposing of
contest as privileged).
Sec. 47.10 LaGuardia v Lanzetta
On Jan. 5, 1934, the Speaker (12) laid before the House
a letter (13) from the Clerk transmitting his unofficial
knowledge of the institution of an election contest by Fiorello H.
LaGuardia against James J. Lanzetta from the 20th Congressional
District of New York. It related that a copy of notice of contest and
reply thereto had been filed with the Clerk, but that, since no
testimony had been transmitted within the time prescribed by law, the
contest had apparently abated. The Clerk's communication and
accompanying papers were referred to the Committee on Elections No. 1
and ordered printed.
---------------------------------------------------------------------------
12. Henry T. Rainey (Ill.).
13. 78 Cong. Rec. 136, 137, 73d Cong. 2d Sess.; H. Jour. 28.
---------------------------------------------------------------------------
The Committee on Elections No. 1 did not submit a report relating
to this election contest during the 73d Congress, and the House took no
action to dispose of the contest.
Note: Syllabi for LaGuardia v Lanzetta may be found herein at
Sec. 15.2 (failure to take testimony within prescribed time).
Sec. 47.11 Lovette v Reece
On Apr. 23, 1934, Mr. Clarence E. Hancock, of New York, submitted
the report (14) of the Committee on Elections No. 1 in the
election contest of O. B. Lovette against B. Carroll Reece from the
First Congressional District of
[[Page 1128]]
Tennessee. The contest had been referred to that committee on Jan. 5,
1934, on which date the Speaker (15) had laid before the
House a letter (16) from the Clerk transmitting the notice
of contest and original testimony. The Speaker had ordered the Clerk's
communication printed with accompanying papers.
---------------------------------------------------------------------------
14. H. Rept. No. 1306, 78 Cong. Rec. 7186, 7190, 73d Cong. 2d Sess.; H.
Jour. 431.
15. Henry T. Rainey (Ill.).
16. 78 Cong. Rec. 136, 73d Cong. 2d Sess.; H. Jour. 28.
---------------------------------------------------------------------------
The report stated that in the general election held on Nov. 8,
1932, of six candidates for Representative from the First Congressional
District of Tennessee, contestee had received 30,366 votes to 27,888
votes for contestant, with 7,950 votes for one Tipton and a few hundred
other votes for the three remaining candidates, leaving a plurality of
2,478 votes for contestee over contestant. Contestant filed timely
notice of contest on Dec. 17, 1932, to which contestee filed timely
answer and motion to dismiss on Jan. 15, 1933. Then, in April of 1933,
contestant filed an amended and supplemental notice of contest.
The committee first found that contestant (Mr. Lovette) had not
sustained the grounds of contest set forth in the original notice,
which alleged fraudulent uses of money to influence the election, and
which allegations were based on hearsay testimony. Specifically the
committee found that the alleged instances of fraud and irregularities
were more probably connected with simultaneous elections for Governor
and for President, and that contestee (Mr. Reece) had not participated
in such practices and had not benefited therefrom more than had
contestant.
With respect to the amended and supplemental notice, though filed
after the time prescribed by law for the filing of notice of contest,
the committee granted contestant's request that testimony of certain
witnesses, taken pursuant to such notice and after expiration of the
prescribed time period, be printed.
The committee found that, as to the allegations that contestee's
brother had collected large sums of money to finance contestee's
election, the evidence indicated that those efforts had been
concentrated upon securing a nominee for Governor and involved
transactions occurring after the election not connected with contestee.
Accordingly, the committee concluded that ``the evidence adduced by
contestant fails utterly to support the charges in the original notice
of contest and
[[Page 1129]]
in the amended and supplemental notice, and that what little evidence
there is which might tend to support some of the allegations is so
vague and inconclusive as to cast no doubt on the right of contestee to
retain his seat.''
The report recommended the adoption of House Resolution
358,(17) which Mr. Homer C. Parker, of Georgia, offered from
the floor as privileged on Apr. 25, 1934. The resolution, which was
agreed to without debate and by voice vote, provided:
---------------------------------------------------------------------------
17. 78 Cong. Rec. 7371, 73d Cong. 2d Sess.; H. Jour. 440.
---------------------------------------------------------------------------
Resolved, That O. B. Lovette was not elected a Representative
to the Seventy-third Congress from the First Congressional District
of the State of Tennessee, and is not entitled to a seat therein.
Resolved, That B. Carroll Reece was duly elected a
Representative to the Seventy-third Congress from the First
Congressional District of the State of Tennessee, and is entitled
to retain his seat therein.
Note: Syllabi for Lovette v Reece may be found herein at Sec. 10.20
(illegal use of funds); Sec. 20.3 (notice of contest filed late);
Sec. 35.9 (allegations of improper expenditures).
Sec. 47.12 McAndrews v Britten
Mr. Homer C. Parker, of Georgia, submitted the report
(18) from the Committee on Elections No. 1 on Apr. 23, 1934,
in the election contest of James McAndrews against Fred A. Britten from
the Ninth Congressional District of Illinois. The contest had been
referred to that committee on Jan. 5, 1934, on which date the Speaker
(19) had laid before the House a letter (20) from
the Clerk transmitting the notice of contest, testimony and other
papers.
---------------------------------------------------------------------------
18. H. Rept. No. 1298, 78 Cong. Rec. 7166, 7190, 73d Cong. 2d Sess.; H.
Jour. 431.
19. Henry T. Rainey (Ill.).
20. 78 Cong. Rec. 136, 73d Cong. 2d Sess.; H. Jour. 28.
---------------------------------------------------------------------------
The report stated that contestee had received 40,253 votes from the
official returns of the election held Nov. 8, 1932, and that contestant
had received 36,596 votes in that election, a plurality of 3,657 votes
for contestee.
In his notice of contest, contestant alleged that contestee had
violated the Federal Corrupt Practices Act and that contestee had
received a ``split-vote'' so disproportionately large as compared to
the ``straight votes'' cast for him ``that the presumption of fraud
naturally and necessarily follows.'' The committee report rejected all
such allegations as not supported by the evidence, stating that ``the
testimony of a so-called `expert' upon the disproportionate split vote
is so frail and unconvincing in its nature as to leave no doubt
[[Page 1130]]
in the mind of the committee of the falsity of the charge of fraud by
reason of said disproportionate split vote.''
The contestant's allegations and the committee's grounds for their
rejection were more specifically elaborated in debate on the floor of
the House on Apr. 26, 1934. On that date, Mr. Parker offered House
Resolution 362 (l) from the floor as privileged. Mr. Parker
had, on Apr. 25, 1934, offered that resolution (2) for the
immediate consideration of the House. When a Member had sought time to
debate the resolution, Mr. Parker withdrew the resolution and sought
unanimous consent that it be considered the following day after
disposition of business on the Speaker's table. The Speaker informed
Mr. Parker that such request was not necessary, as the resolution was
privileged and could be called up at any time.
---------------------------------------------------------------------------
1. 78 Cong. Rec. 7456, 73d Cong. 2d Sess.; H. Jour. 448.
2. 78 Cong. Rec. 7371, 73d Cong. 2d Sess.
---------------------------------------------------------------------------
On Apr. 26, immediately upon the offering of the resolution by Mr.
Parker, Mr. Adolph J. Sabath, of Illinois, sought recognition to offer
a ``substitute'' for the resolution. Mr. Parker refused to yield for
that purpose and was recognized by the Speaker pro tempore
(3) for one hour. Mr. Sabath thereupon asked unanimous
consent that his ``substitute'' be read for the information of the
House, to which request Mr. Ralph R. Eltse, of California, objected.
Mr. Parker then yielded 30 minutes for debate to Mr. John B. Hollister,
of Ohio, and 15 minutes to Mr. Sabath. Mr. Sabath read the substitute
which he had attempted to offer:
---------------------------------------------------------------------------
3. Claude V. Parsons (Ill.).
---------------------------------------------------------------------------
Whereas Committee on Elections No. 1, on March 15, 1934,
ordered a recount of the votes cast in the election held November
8, 1932, in the Ninth Congressional District in the State of
Illinois; and
Whereas a subcommittee was authorized to recount the ballots
and to obtain a determination of the actual votes cast for
contestant and contestee; and
Whereas notwithstanding said action of said committee, and
without said recount having been made, the committee reported on
April 23 to the House recommending the adoption of a resolution
entitling contestee to retain his seat; and
Whereas the action of the committee was taken without notice to
the contestant, and thereby nullified its own previous action
without due procedure or formality of notice to contestant:
Therefore be it
Resolved, That the Committee on Elections No. 1, or a
subcommittee thereof, is hereby authorized to recount the ballots
cast in said election and to
[[Page 1131]]
report to the House the number of votes received by the contestant
and the number of votes received by the contestee.
Mr. Sabath also stated that Mr. Parker had, on Apr. 16, 1934,
introduced House Resolution 335 which was referred to the Committee on
Accounts and which provided that ``$2,500 be appropriated for the
purpose of defraying the expense of recounting the ballots in the city
of Chicago.'' No action was taken on that resolution.
In response to Mr. Sabath's criticism of these committee actions,
Mr. Parker stated that the Committee on Elections No. 1 had voted to
conduct a recount on Mar. 15, 1934, ``because it believed that neither
party to the contest objected to the ballots being counted,'' and that
upon a rehearing in which contestee's objections to such procedure were
presented, the committee had voted unanimously to reconsider the
ordering of the recount. Mr. Lindsay C. Warren, of North Carolina,
defended the action of the Committee on Accounts in not reporting the
expense resolution, as no reason had been given that committee to
justify a recount and as the Committee on Elections had unanimously
reconsidered and decided against such recount.
With respect to alleged violations of the Corrupt Practices Act,
contestant had claimed, and contestee acknowledged on the floor of the
House during debate on the resolution, that contestee had ``offered
prizes to the various precinct captains whose precincts voted the
largest votes in proportion to the Republican votes that were given in
these precincts.'' Mr. David D. Terry, of Arkansas, defended the
committee finding that this offering of prizes was not a violation of 2
USC Sec. 150 which provided:
It is unlawful for any person to make or offer to make an
expenditure or to cause an expenditure to be made or offered to any
person either to vote or withhold his vote or to vote for or
against any candidate, and it is unlawful for any person to
solicit, accept, or receive any such expenditure in consideration
of his vote or the withholding of his vote.
Mr. Parker contended that the large split vote for contestee had
been the case for many members of contestee's political party, as they
had to have ``run ahead of the ticket'' to have been elected on Nov. 8,
1932, as a candidate of that party.
After Mr. Parker moved the previous question, which was ordered by
voice vote, the resolution was agreed to by voice vote. It provided:
Resolved, That James McAndrews was not elected a Representative
to the
[[Page 1132]]
Seventy-third Congress from the Ninth District of the State of
Illinois and is not entitled to a seat therein.
Resolved, That Fred A. Britten was duly elected a
Representative to the Seventy-third Congress from the Ninth
Congressional District of the State of Illinois and is entitled to
retain his seat.
Note: Syllabi for McAndrews v Britten may be found herein at
Sec. 11.4 (``prizes'' to campaign workers); Sec. 12.4 (balloting
irregularities); Sec. 41.6 (reconsideration of action of ordering a
recount); Sec. 42.3 (resolution disposing of contest as privileged);
Sec. 42.17 (substitute resolutions).
Sec. 47.13 Reese v Ellzey
On Feb. 9, 1934, Mr. John H. Kerr, of North Carolina, submitted the
report (4) of the Committee on Elections No. 3 in the
election contest of Reese v Ellzey from the Seventh Congressional
District of Mississippi. The contest had been referred to that
committee on Jan. 5, 1934, on which date the Speaker (5) had
laid before the House a letter(6) from the Clerk
transmitting his ``unofficial knowledge'' of the contest together with
contestant's letter of withdrawal therefrom. Upon referral, the Clerk's
letter and accompanying papers had been ordered printed.
---------------------------------------------------------------------------
4. H. Rept. No. 696, 78 Cong. Rec. 2282, 2292, 73d Cong. 2d Sess.; H.
Jour. 153.
5. Henry T. Rainey ( Ill.).
6. 78 Cong. Rec. 136, 73d Cong. 2d Sess.; H. Jour. 28.
---------------------------------------------------------------------------
The committee report contained contestant's letter of withdrawal
from the contest. Contestant claimed that the election of Nov. 8, 1932,
was void ``when two so-called `Republican' tickets were placed on the
ballot in this district,'' that ``in the failure to appoint a single
Republican election officer or judge in the entire district as mandated
by the laws of the State of Mississippi, there was also a direct and
willful violation of the law'' and that ``my party and myself have been
illegally discriminated against.'' Nevertheless, ``while so many
matters of vital importance require the attention of the Congress, it
would be unpatriotic on my part to attempt to occupy the time of
Congress about a matter of such trivial importance to the welfare of
our country.'' The committee report accompanied House Resolution
261,(7) Mr. Kerr offered from the floor as privileged on
Feb. 24, 1934. The resolution was agreed to by voice vote and without
debate after Mr. John E. Rankin of Mississippi, observed that the
resolution incor
[[Page 1133]]
rectly referred to the Eighth Congressional District, rather than to
the Seventh Congressional District of the State of Mississippi. Mr.
Kerr obtained unanimous-consent permission that the resolution be
corrected accordingly. As thus amended, the resolution--
---------------------------------------------------------------------------
7. 78 Cong. Rec. 3165, 73d Cong. 2d Sess.; H. Jour. 202.
---------------------------------------------------------------------------
Resolved, That L. G. Reese is not entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Seventh Congressional District of the State of Mississippi; and be
it further
Resolved, That Russell Ellzey is entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Seventh Congressional District of the State of Mississippi.
Note: Syllabi for Reese v Ellzey may be found herein at Sec. 6.10
(items transmitted by Clerk); Sec. 43.12 (effect of contestant's
withdrawal or abandonment of contest).
Sec. 47.14 Kemp, Sanders Investigation
On June 19, 1933, three days after the adjournment of the first
session of the 73d Congress, the death of Mr. Bolivar E. Kemp created a
vacancy in the seat from the Sixth Congressional District of Louisiana.
On Jan. 3, 1934, the date of the convening of the second session of
the 73d Congress, the Speaker (8) laid before the House a
letter (9) from the Clerk transmitting a certificate of
election of Mrs. Bolivar E. Kemp, Sr., signed by the Governor of
Louisiana and attested by the Secretary of State of Louisiana, to fill
the vacancy. The Clerk's letter also transmitted a certificate of
election of J. Y. Sanders, prepared by the ``Citizens' Election
Committee of the Sixth Congressional District,'' to fill said vacancy.
Thereupon, Mr. Riley J. Wilson, of Louisiana, offered from the floor
House Resolution 202: (l0)
---------------------------------------------------------------------------
8. Henry T. Rainey (Ill.).
9. 78 Cong. Rec. 11, 12, 73d Cong. 2d Sess.; H. Jour. 13, 14.
10. 78 Cong. Rec. 12, 73d Cong. 2d Sess.; H. Jour. 14.
---------------------------------------------------------------------------
Resolved, That the question of prima facie as well as the final
right of Mrs. Bolivar E. Kemp, Sr., and J. Y. Sanders, Jr.,
contestants, respectively, claiming a seat in this House from the
Sixth District of Louisiana, be referred to the Committee on
Elections No. 3; and until such committee shall have reported in
the premises and the House decided such question neither of said
contestants shall be admitted to a seat.
Mr. Wilson, recognized for one hour on his resolution, expressed
the acquiescence of the Louisiana delegation and of the contestants in
its adoption. The resolution was agreed to by voice vote.
On Jan. 20, 1934,(11) Mr. John H. Kerr, of North
Carolina, sub
[[Page 1134]]
mitted the unanimous report of the Committee on Elections No. 3 to
accompany House Resolution 231.(1~2~) The committee found no
dispute concerning the facts involving the election held on Dec. 5,
1933, at which Mrs. Kemp received about 5,000 votes (a few votes having
been cast for other parties), and involving the election held on Dec.
27, 1933, at which Mr. Sanders received about 15,000 votes (a few votes
having been cast for other parties).
---------------------------------------------------------------------------
11. H. Rept. No. 334, 78 Cong. Rec. 1035, 73d Cong. 2d Sess.; H. Jour.
80.
12. See 78 Cong. Rec. 1521, 73d Cong. 2d Sess., Jan. 29, 1934, where
resolution was adopted.
---------------------------------------------------------------------------
The report relates as undisputed fact that from the time of the
death of Bolivar E. Kemp on June 19, 1933, until Nov. 27, 1933, the
Governor of Louisiana did not issue a writ of election to fill the
vacancy, though he was ``petitioned by thousands of voters of the Sixth
Congressional District to issue his proclamation. . . .'' According to
the report, ``On the 27th day of November 1933, there was delivered to
the district committee in the city of New Orleans outside the Sixth
Congressional District a proclamation calling for an election to be
held within eight days, namely, on the fifth day of December 1933.'' In
his statement made in debate on Jan. 29, 1934, however, Mr. Kerr
related that the proclamation of the Governor had been ``entrusted to
the executive committee of the Sixth District, and that committee,
outside the district, in the city of New Orleans, called an election
pursuant to this proclamation of the Governor, or at least announced
that there would be an election, and undertook to name a candidate to
be voted on at that election.''
On Nov. 28, 1933, the Citizens' Election Committee of the Sixth
Congressional District met in the district and fixed the day for the
``election'' at Dec. 27, 1933, 30 days after the meeting.
The report then undertook to recite and interpret federal and state
law governing the holding of elections to fill vacancies. The report
cited provisions of the U.S. Constitution permitting the states to
prescribe the time, place, and manner of holding elections for
Representatives, subject to alteration by Congress (art. I, Sec. 4),
and providing that the state executive authority ``shall issue writs of
election'' to fill vacancies in the House of Representatives (art. I,
Sec. 2). Citing Ex parte Clarke (1879), 100 U.S. 399, the committee
affirmed the power of Congress to adopt the laws of the states
regulating methods of electing Representatives.
The report recited portions of the laws of Louisiana (the general
[[Page 1135]]
election law, Act 130, A.D. 1916, and the primary law, Act 97, A.D.
1922) relevant to the choosing of candidates for filling vacancies and
to the filling of such vacancies:
That it shall be the duty of the Governor, at least thirty days
before every general election, to issue his proclamation, giving
notice thereof, which shall be published in the official journal.
In case of a vacancy in the said office of Representative in
Congress, between the general elections, it shall be the duty of
the Governor by proclamation to cause an election to be held
according to law to fill such vacancy. (Emphasis added.)
From this, the committee concluded that ``the proclamation of the
Governor, who is required by law to call either a general or special
election, carries with it the duty to give the electorate a reasonable
notice of the time, place, and manner of such election, and the failure
to give said notice is a contravention of both the spirit and the
letter of the law.''
The report then cited section 9 of the primary election law which
provided:
That whenever a special election is held to fill a vacancy for
an unexpired term caused by death, resignation or otherwise of any
officer, the respective committees having authority to call primary
elections to nominate candidates for said office, shall have full
authority to fix the date at which a primary election shall be held
to nominate candidates in said special election, which date shall
not be less than ten days after the special election shall have
been ordered.
The committee concluded that ``it is mandatory that the Governor should
give more than 10 days' notice of said election in order that the
district committee might comply with the law and allow the electorate
of the district to select a candidate,'' i.e., ``to call a primary
`within not less than 10 days after the special election has been
called'.''
Section 1 of the primary law provided:
That all political parties shall make all nominations for
candidates for the United States Senate, Members of the House of
Representatives in the Congress . . . by direct primary elections.
That any nomination, of any person for any of the aforesaid
mentioned offices by any other method shall be illegal, and the
secretary of state is prohibited from placing on the official
ballot the name of any person as a candidate for any political
party not nominated in accordance with the provisions of this act.
The report stated that ``in this state a nomination in a Democratic
primary assures the candidate of election, at either a special or
general election; and this makes the primary most important.'' Thus the
primary election was, in effect, the sole method of selecting
candidates.
[[Page 1136]]
Section 31 of the primary laws provided three exceptions to the
requirement of direct primary elections:
That all vacancies caused by death or resignation or otherwise
among the nominees selected by any political party, under the
provisions of this act, shall be filled by the committee, which has
jurisdiction over the calling and ordering of the said primary
election, and in the event that no person shall have applied to
become a candidate for a political office within the time fixed by
law, or the call of the committee ordering the primary, or in any
other event wherein the party shall have no nominee selected under
the provisions of this act, the committee calling the primary shall
select the nominee for 'any position named in the call of the
committee and shall have full authority to certify said name as the
nominee of the said party: . . .
The report found that the district committee, without ``calling'' a
primary election, ``undertook and did name Mrs. Kemp as the candidate
to be voted for at the December 5 election, called by the Governor''
and that ``this procedure of the district committee could not come
within the exceptions defined in section 31 of the primary law.''
During debate in the House on Jan. 29, 1934, Mr. Kerr attempted to
clarify the intent of section 31 as permitting a committee to supply
nominees where none or only one had applied in response to the primary
call, ``so that the people could have the opportunity of selecting
their candidate.'' Mr. Cox raised the question whether if the election
were called at a time that made impossible the holding of a primary
election, the committee might then make the nomination itself. Mr. Kerr
replied that ``the committee had no right under the law to participate
in any kind of action which deprived the people of the state of
Louisiana of nominating a candidate.'' Mr. Cleveland Dear, of
Louisiana, interpreted the language ``or in any other event wherein the
party shall have no nominee selected under the provisions of this act''
as not permitting the executive committee to make a nomination where
there has been no primary election unless such primary had been called.
Citing the section 31 language ``the committee calling the election,''
Mr. Dear contended that the committee must call a primary election as a
condition precedent to its powers of nomination, as ``there must be a
time fixed for them (candidates) to qualify. . . . Under this section
the committee calling and ordering the primary has authority to select
the nominee for any position named in the call of the committee clearly
indicated that there must be first a call before it is au
[[Page 1137]]
thorized to name such a nominee.'' The report concluded that ``both the
nomination and election of Mrs. Kemp are illegal and void; that the
Governor's proclamation was not in accordance with the law; and the
voters of the district were not allowed to choose a candidate in the
method approved by law, and therefore, Mrs. Kemp is not entitled to a
seat in the House of Representatives.''
On Jan. 22, 1934, Mr. Ross A. Collins, of Mississippi, took the
floor (13) to dissent from the committee report which had
been submitted Jan. 20. He contended that Mrs. Kemp should have been
granted prima facie right to a seat, her credentials being regular in
form and there being no question as to her constitutional and personal
qualifications. To this Mr. Charles L. Gifford, of Massachusetts,
replied that the House had on Jan. 3, 1934, determined that such
question be referred to the Committee on Elections for report. During
debate on Jan. 29, 1934, Mr. Randolf Perkins, of New Jersey, claimed
that ``there could be no prima facie right unless there were a legal
election. A mere certificate would not establish prima facie right;
there would have to be underlying that certificate a legal election.''
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13. 78 Cong. Rec. 1109-11, 73d Cong. 2d Sess.
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Mr. Collins cited McCrary on Elections (George McCrary, A Treatise
on the American Law of Elections, Chicago, Callaghan & Co., 1897),
paragraphs 185 and 186, in support of his contention that the Governor
may fix the time for a special election to fill a vacancy where the
legislature has not established such time, and where the existence of
five candidates, none of whom might achieve a majority in the first
primary, would under state primary law force subsequent primaries
beyond Jan. 1, 1934, at which time state law would void the existing
registrations of voters and require new registrations. Mr. Collins also
supported the nomination of Mrs. Kemp by the committee, absent the
calling of a primary, claiming that the words ``calling the primary''
in section 31 were ``merely descriptive of the committee whose duty it
is to make the nomination. Were it not for this descriptive language,
some other congressional committee might claim the right to make the
nominations.''
With respect to the election of Mr. Sanders on Dec. 27, 1933, as
called by the ``Citizens Election Committee,'' the view was taken that
such election was illegal and void, there being no political machinery
under the laws of Louisiana providing therefor.
On Jan. 20, 1934, Mr. Kerr called up House Resolution 231 as
[[Page 1138]]
privileged, and obtained unanimous consent permission that time for
debate be extended to one and one-half hours, to be equally divided and
controlled by himself and Mr. Gifford. In response to the parliamentary
inquiry of Mr. Cassius C. Dowell, of Iowa, the Speaker upheld the
propriety of that clause in the resolution which required the Speaker
to notify the Governor of Louisiana of the action taken by the House in
declaring the seat vacant.
After debate, Mr. Kerr moved the previous question on the
resolution, which was ordered by a voice vote. Thereupon, House
Resolution 231 was agreed to by voice vote. The resolution stated:
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.
Note: Syllabi for the Kemp, Sanders investigation may be found
herein at Sec. 4.3 (House power over administration of oath to
candidate in election contests); Sec. 6.2 (items transmitted by Clerk);
Sec. 9.1 (certificates of election); Sec. Sec. 10.17, 10.18 (improperly
conducted special election); Sec. 10.19 (improperly conducted primary
elections); Sec. 42.12 (disposal of contest by resolution declaring
seat vacant); Sec. 42.15 (resolution admitting neither contestant to a
seat).
Sec. 47.15 Shanahan v Beck
Mr. John H. Kerr, of North Carolina, submitted the report
(14) of the Committee on Elections No. 3 on Feb. 9, 1934, in
the election contest of John J. Shanahan against James M. Beck from the
Second Congressional District of Pennsylvania. The contest had been
referred to that committee on Jan. 5, 1934, on which date the Speaker
(15) had laid before the House a letter (16) from
the Clerk transmitting a copy of the notice of contest and reply, with
the statement that no testimony had been received within the time
prescribed by law and that the contest appeared to have abated. The
Speaker had ordered that communication to be printed (not designated as
a House document).
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14. H. Rept. No. 694, 78 Cong. Rec. 2282, 2292, 73d Cong. 2d Sess.; H.
Jour. 153.
15. Henry T. Rainey (Ill.).
16. 78 Cong. Rec. 136, 73d Cong. 2d Sess.; H. Jour. 28.
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The report confirmed that ``there was no evidence before the
[[Page 1139]]
committee of the matters charged in (the) notice of contest, and no
briefs filed, as provided by law.'' The committee found such ``laches''
to be inexcusable under the circumstances, but permitted contestant to
withdraw unprinted evidence which he had submitted while testifying
before the committee without prejudice. Finally, the report stated that
contestee had evidently been elected by a majority of more than 14,000
votes in the election held Nov. 8, 1932.
The report accompanied House Resolution 259,(17) which
Mr. Kerr offered from the floor as privileged on Feb. 24, 1934. The
resolution was agreed to by voice vote and without debate. It provided:
---------------------------------------------------------------------------
17. 78 Cong. Rec. 3165, 73d Cong. 2d Sess.; H. Jour. 201, 202.
---------------------------------------------------------------------------
Resolved, That John J. Shanahan is not entitled to a seat in
the House of Representatives of the Seventy-third Congress from the
Second Congressional District of the State of Pennsylvania; and be
it further
Resolved, That James M. Beck is entitled to a seat in the House
of Representatives of the Seventy-third Congress from the Second
Congressional District of the State of Pennsylvania.
Note: Syllabi for Shanahan v Beck may be found herein at Sec. 15.3
(failure to take testimony within prescribed time); Sec. 16.2
(inexcusable delay in filing briefs in taking testimony); Sec. 25.2
(failure to produce evidence); Sec. 22.1 (withdrawal of evidence).
Sec. 47.16 Weber v Simpson
On May 4, 1934, Mr. John H. Kerr, of North Carolina, submitted the
report (18) of the Committee on Elections No. 3 in the
election contest brought by Charles H. Weber against James Simpson, Jr.
and Ralph E. Church from the 10th Congressional District of Illinois.
---------------------------------------------------------------------------
18. H. Rept. No. 1494, 78 Cong. Rec. 8085, 8122, 73d Cong. 2d Sess.; H.
Jour. 489.
---------------------------------------------------------------------------
At the conclusion of the 72d Congress, on Mar. 3, 1933, the Speaker
(19) had laid before the House a letter (20) from
the Clerk transmitting a subpena duces tecum served upon him by
contestant's notary public and requesting the production of documents
filed by contestee (Mr. Simpson) in compliance with the Corrupt
Practices Act. The Clerk's letter included his reply by which he had
refused to comply with the subpena pending approval of the House. The
communication and accompanying papers were referred to the Committee on
the Judiciary and ordered printed (not
[[Page 1140]]
designated as a House document). The 72d Congress did not authorize the
Clerk to respond to the subpena duces tecum.
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19. John N. Garner (Tex.).
20. 76 Cong. Rec. 5581, 72d Cong. 2d Sess.; H. Jour. 64.
---------------------------------------------------------------------------
The contest was transmitted to the Seventy-third Congress on Jan.
16, 1934, on which date the Speaker (1) laid before the
House a letter (2) from the Clerk. The communication was
referred to the Committee on Elections No. 3 and ordered printed (not
designated as a House document).
---------------------------------------------------------------------------
1. Henry T. Rainey (Ill.).
2. 78 Cong. Rec. 760, 761, 73d Cong. 2d Sess.; H. Jour. 64.
---------------------------------------------------------------------------
At the general election held Nov. 8, 1932, contestee (Mr. Simpson)
had received 101,671 votes to 100,449 votes for contestant and to
45,067 votes for Mr. Church, a plurality of 1,222 votes for contestee.
Contestant thereafter examined the tally sheets in all of the 516
precincts comprising the 10th Congressional District, and found
discrepancies in 128 precincts which reduced contestee Simpson's
plurality to 920 votes.
Contestant requested that the committee order a recount of all
ballots cast, based on the mistakes shown to have existed in 128
precincts. The committee denied this request, finding no evidence of
irregularities, intimidation or fraud in the casting of ballots. The
committee concluded that ``contestant has failed to overcome the prima
facie case made by the election returns upon which a certificate of
election was given to the contestee.'' House Resolution 374
(3) was submitted on May 4, 1934, by Mr. Kerr with the
report, and was referred to the House Calendar. As recommended by the
committee, the resolution--
---------------------------------------------------------------------------
3. 78 Cong. Rec. 8085, 8122, 73d Cong. 2d Sess.; H. Jour. 489.
---------------------------------------------------------------------------
Resolved, That Charles H. Weber is not entitled to a seat in
the House of Representatives of the Seventy-third Congress from the
Tenth Congressional District of the State of Illinois; and further
Resolved, That James Simpson, Jr. is entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Tenth Congressional District of the State of Illinois.
The resolution was not called up during the 73d Congress.
Note: Syllabi for Weber v Simpson may be found herein at Sec. 6.13
(items transmitted by Clerk); Sec. 30.1 (Clerk's refusal to respond to
subpena); Sec. Sec. 36.1, 36.7 (official returns as presumptively
correct); Sec. 44.7 (burden of proving recount would change election
result); Sec. 42.20 (House failure to take action on reported
resolutions).