[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9. Election Contests]
[A. In General]
[§ 2. Contested Election Laws]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 974-983]
CHAPTER 9
Election Contests
A. IN GENERAL
Sec. 2. Contested Election Laws
Contests for seats in the House of Representatives are governed by
the Federal Contested Elections Act. This statute (2 USC Sec. Sec. 381-
396) sets forth the procedure by which a defeated candidate may have
his claim to a seat adjudicated by the House. The act provides for the
filing of notice of contest and other proceedings (Sec. Sec. 20-26,
infra), for the taking of testimony of witnesses (Sec. Sec. 27-31,
infra), and for a hearing on the depositions and other papers
(Sec. Sec. 32, 33, infra) that have been filed with the Clerk (Sec. 6,
infra). The contest is heard by the Committee on House Administration
(Sec. 5, infra). Acting upon committee reports, the House, by
privileged resolution, then disposes of the case by declaring one of
the parties to be entitled to the seat (Sec. 44, infra).
The act (Public Law 91-138) provides as follows:
[[Page 975]]
short title
Section 1. This Act may be cited as the ``Federal Contested
Election Act''.
definitions
Sec. 2. For purposes of this Act--
(a) The term ``election'' means an official general or special
election to chose a Representative in or Resident Commissioner to
the Congress of the United States, but does not include a primary
election, or a caucus or convention of a political party.
(b) The term ``candidate'' means an individual (1) whose name
is printed on the official ballot for election to the House of
Representatives of the United States, or (2) notwithstanding his
name is not printed on such ballot, who seeks election to the House
of Representatives by write-in votes, provided that he is qualified
for such office and that, under the law of the State in which the
congressional district is located, write-in voting for such office
is permitted and he is eligible to receive write-in votes in such
election.
(c) The term ``contestant'' means an individual who contests
the election of a Member of the House of Representatives of the
United States under this Act.
(d) The term ``contestee'' means a Member of the House of
Representatives of the United States whose election is contested
under this Act.
(e) The term ``Member'' means an incumbent Representative in or
Resident Commissioner to the Congress of the United States, or an
individual who has been elected to either of such offices but has
not taken the oath of office.
(f) The term ``Clerk'' means the Clerk of the House of
Representatives of the United States.
(g) The term ``committee'' means the Committee on House
Administration of the House of Representatives of the United
States.
(h) The term ``State'' includes territory and possession of the
United States.
(i) The term ``write-in vote'' means a vote cast for a person
whose name does not appear on the official ballot by writing in the
name of such person on such ballot or by any other method
prescribed by the law of the State in which the election is held.
notice of contest
Sec. 3. (a) Whoever, having been a candidate for election to
the House of Representatives in the last preceding election and
claiming a right to such office, intends to contest the election of
a Member of the House of Representatives, shall, within thirty days
after the result of such election shall have been declared by the
officer or Board of Canvassers authorized by law to declare such
result, file with the Clerk and serve upon the contestee written
notice of his intention to contest such election.
(b) Such notice shall state with particularity the grounds upon
which contestant contests the election and shall state that an
answer thereto must be served upon contestant under section 4 of
this Act within thirty days after service of such notice. Such
notice shall be signed by contestant and verified by his oath or
affirmation.
(c) Service of the notice of contest upon contestee shall be
made as follows:
(1) by delivering a copy to him personally;
[[Page 976]]
(2) by leaving a copy at his dwelling house or usual place of
abode with a person of discretion not less than sixteen years of
age then residing therein;
(3) by leaving a copy at his principal office or place of
business with some person then in charge thereof;
(4) by delivering a copy to an agent authorized by appointment
to receive service of such notice; or
(5) by mailing a copy by registered or certified mail addressed
to contestee at his residence or principal office or place of
business. Service by mail is complete upon mailing;
(6) the verified return by the person so serving such notice,
setting forth the time and manner of such service shall be proof of
same, and the return post office receipt shall be proof of the
service of said notice mailed by registered or certified mail as
aforesaid. Proof of service shall be made to the Clerk promptly and
in any event within the time during which the contestee must answer
the notice of contest. Failure to make proof of service does not
affect the validity of the service.
answer; defenses made by motion
Sec. 4. (a) Any contestee upon whom a notice of contest as
described in section 3 shall be served, shall, within thirty days
after the service thereof, serve upon contestant a written answer
to such notice, admitting or denying the averments upon which
contestant relies. If contestee is without knowledge or information
sufficient to form a belief as to the truth of an averment, he
shall so state and this shall have the effect of a denial. Such
answer shall set forth affirmatively any other defenses, in law or
fact, on which contestee relies. Contestee shall sign and verify
such answer by oath or affirmation.
(b) At the option of contestee, the following defenses may be
made by motion served upon contestant prior to contestee's answer:
(1) Insufficiency of service of notice of contest.
(2) Lack of standing of contestant.
(3) Failure of notice of contest to state grounds sufficient to
change result of election.
(4) Failure of contestant to claim right to contestee's seat.
(c) If a notice of contest to which an answer is required is so
vague or ambiguous that the contestee cannot reasonably be required
to frame a responsive answer, he may move for a more definite
statement before interposing his answer. The motion shall point out
the defects complained of and the details desired. If the motion is
granted and the order of the committee is not obeyed within ten
days after notice of the order or within such other time as the
committee may fix, the committee may dismiss the action, or make
such order as it deems just.
(d) Service of a motion permitted under this section alters the
time for serving the answer as follows, unless a different time is
fixed by order of the committee: If the committee denies the motion
or postpones its disposition until the hearing on the merits, the
answer shall be served within ten days after notice of such action.
If the committee grants a motion for a more definite statement the
answer shall be served within ten days after service of the more
definite statement.
service and filing of papers other than notice of contest; how
made; proof of service
Sec. 5. (a) Except for the notice of contest, every paper
required to be
[[Page 977]]
served shall be served upon the attorney representing the party,
or, if he is not represented by an attorney, upon the party
himself. Service upon the attorney or upon a party shall be made:
(1) by delivering a copy to him personally;
(2) by leaving it at his principal office with some person then
in charge thereof; or if the office is closed or the person to be
served has no office, leaving it at his dwelling house or usual
place of abode with a person of discretion not less than sixteen
years of age then residing therein; or
(3) by mailing it addressed to the person to be served at his
residence or principal office. Service by mail is complete upon
mailing.
(b) All papers subsequent to the notice of contest required to
be served upon the opposing party shall be filed with the Clerk
either before service or within a reasonable time thereafter.
(c) Papers filed subsequent to the notice of contest shall be
accompanied by proof of service showing the time and manner of
service, made by affidavit of the person making service or by
certificate of an attorney representing the party in whose behalf
service is made. Failure to make proof of service does not affect
the validity of such service.
default of contestee
Sec. 6. The failure of contestee to answer the notice of
contest or to otherwise defend as provided by this Act shall not be
deemed an admission of the truth of the averments in the notice of
contest. Notwithstanding such failure, the burden is upon
contestant to prove that the election results entitle him to
contestee's seat.
taking testimony by deposition
Sec. 7. (a) Either party may take the testimony of any person,
including the opposing party, by deposition upon oral examination
for the purpose of discovery or for use as evidence in the
contested election case, or for both purposes. Depositions shall be
taken only within the time for the taking of testimony prescribed
in this section.
(b) Witnesses may be examined regarding any matter, not
privileged, which is relevant to the subject matter involved in the
pending contested election case, whether it relates to the claim or
defense of the examining party or the claim or defense of the
opposing party, including the existence, description, nature,
custody, condition and location of any books, papers, documents, or
other tangible things and the identity and location of persons
having knowledge of relevant facts. After the examining party has
examined the witness the opposing party may cross examine.
(c) The order in which the parties may take testimony shall be
as follows:
(1) Contestant may take testimony within thirty days after
service of the answer, or, if no answer is served within the time
provided in section 4, within thirty days after the time for answer
has expired.
(2) Contestee may take testimony within thirty days after
contestant's time for taking testimony has expired.
(3) If contestee has taken any testimony or has filed
testimonial affidavits or stipulations under section 8(c),
contestant may take rebuttal testimony within ten days after
contestee's time for taking testimony has expired.
(d) Testimony shall be taken before an officer authorized to
administer
[[Page 978]]
oaths by the laws of the United States or of the place where the
examination is held.
(e) Attendance of witnesses may be compelled by subpena as
provided in section 9.
(f) At the taking of testimony, a party may appear and act in
person, or by his agent or attorney.
(g) The officer before whom testimony is to be taken shall put
the witness under oath and shall personally, or by someone acting
under his direction and in his presence, record the testimony of
the witness. The testimony shall be taken stenographically and
transcribed. All objections made at the time of examination to the
qualifications of the officer taking the deposition, or to the
manner of taking it, or to the evidence presented, or the conduct
of any party, and any other objection to the proceedings, shall be
noted by the officer upon the deposition. Evidence objected to
shall be taken subject to the objections. In lieu of participating
in the oral examination, a party served with a notice of deposition
may transmit written interrogatories to the officer, who shall
propound them to the witness and record the answers verbatim.
(h) When the testimony is fully transcribed, the deposition
shall be submitted to the witness for examination and shall be read
to or by him, unless such examination and reading are waived by the
witness and the parties. Any changes in the form or substance which
the witness desires to make shall be entered upon the deposition by
the officer with a statement of the reasons given by the witness
for making them. The deposition shall be signed by the witness,
unless the parties by stipulation waive the signing or the witness
is ill or cannot be found or refuses to sign. If the deposition is
not signed by the witness, the officer shall sign it and note on
the deposition the fact of the waiver or of the illness or the
absence of the witness or the fact of refusal to sign together with
the reason, if any, given therefor; and the deposition may then be
used as fully as though signed, unless on a motion to suppress, the
committee rules that the reasons given for the refusal to sign
require rejection of the deposition in whole or in part.
notice of depositions; testimony by affidavit or stipulation
Sec. 8. (a) A party desiring to take the deposition of any
person upon oral examination shall serve written notice on the
opposing party not later than two days before the date of the
examination. The notice shall state the time and place for taking
the deposition and the name and address of each person to be
examined. A copy of such notice, together with proof of such
service thereof, shall be attached to the deposition when it is
filed with the Clerk.
(b) By written stipulation of the parties, the deposition of a
witness may be taken without notice. A copy of such stipulation
shall be attached to the deposition when it is filed with the
Clerk.
(c) By written stipulation of the parties, the testimony of any
witness of either party may be filed in the form of an affidavit by
such witness or the parties may agree what a particular witness
would testify to if his deposition were taken. Such testimonial
affidavits
[[Page 979]]
or stipulations shall be filed within the time limits prescribed
for the taking of testimony in section 7.
subpenas; production of documents
Sec. 9. (a) Upon application of any party, a subpena for
attendance at a deposition shall be issued by:
(1) a judge or clerk of the United States district court for
the district in which the place of examination is located;
(2) a judge or clerk of any court of record of the State in
which the place of examination is located; or
(3) a judge or clerk of any court of record of the county in
which the place of examination is located.
(b) Service of the subpena shall be made upon the witness no
later than three days before the day on which his attendance is
directed. A subpena may be served by any person who is not a party
to the contested election case and is not less than eighteen years
of age. Service of a subpena upon a person named therein shall be
made by delivering a copy thereof to such person and by tendering
to him the fee for one day's attendance and the mileage allowed by
section 10. Written proof of service shall be made under oath by
the person making same and shall be filed with the Clerk.
(c) A witness may be required to attend an examination only in
the county wherein he resides or is employed, or transacts his
business in person, or is served with a subpena, or within forty
miles of the place of service.
(d) Every subpena shall state the name and title of the officer
issuing same and the title of the contested election case, and
shall command each person to whom it is directed to attend and give
testimony at a time and place and before an officer specified
therein.
(e) A subpena may also command the person to whom it is
directed to produce the books, papers, documents, or other tangible
things designated therein, but the committee, upon motion promptly
made and in any event at or before the time specified in the
subpena for compliance therewith, may (1) quash or modify the
subpena if it is unreasonable or oppressive, or (2) condition
denial of the motion upon the advancement by the party in whose
behalf the subpena is issued of the reasonable cost of producing
the books, papers, documents, or tangible things. In the case of
public records or documents, copies thereof, certified by the
person having official custody thereof, may be produced in lieu of
the originals.
officer and witness fees
Sec. 10. (a) Each judge, clerk of court, or other officer who
issues any subpena or takes a deposition and each person who serves
any subpena or other paper herein authorized shall be entitled to
receive from the party at whose instance the service shall have
been performed such fees as are allowed for similar services in the
district courts of the United States.
(b) Witnesses whose depositions are taken shall be entitled to
receive from the party at whose instance the witness appeared the
same fees and travel allowance paid to witnesses subpenaed to
appear before the House of Representatives or its committees.
penalty for failure to appear, testify, or produce documents
Sec. 11. Every person who, having been subpenaed as a witness
under
[[Page 980]]
this Act to give testimony or to produce documents, willfully makes
default, or who, having appeared, refuses to answer any question
pertinent to the contested election case, shall be deemed guilty of
a misdemeanor punishable by fine of not more than $1,000 nor less
than $100 or imprisonment for not less than one month nor more than
twelve months, or both.
certification and filing of depositions
Sec. 12. (a) The officer before whom any deposition is taken
shall certify thereon that the witness was duly sworn by him and
that the deposition is a true record of the testimony given by the
witness. He shall then securely seal the deposition, together with
any papers produced by the witness and the notice of deposition or
stipulation, if the deposition was taken without notice, in an
envelope endorsed with the title of the contested election case and
marked ``Deposition of (here insert name of witness)'' and shall
within thirty days after completion of the witness' testimony, file
it with the Clerk.
(b) After filing the deposition, the officer shall promptly
notify the parties of its filing.
(c) Upon payment of reasonable charges therefor, not to exceed
the charges allowed in the district court of the United States for
the district wherein the place of examination is located, the
officer shall furnish a copy of deposition to any party or the
deponent.
record; printing and filing of briefs and appendixes
Sec. 13. (a) Contested election cases shall be heard by the
committee on the papers, depositions, and exhibits filed with the
Clerk. Such papers, depositions, and exhibits shall constitute the
record of the case.
(b) Contestant shall print as an appendix to his brief those
portions of the record which he desires the committee to consider
in order to decide the case and such other portions of the record
as may be prescribed by the rules of the committee.
(c) Contestee shall print as an appendix to his brief those
portions of the record not printed by contestant which contestee
desires the committee to consider in order to decide the case.
(d) Within forty-five days after the time for both parties to
take testimony has expired, contestant shall serve on contestee his
printed brief of the facts and authorities relied on to establish
his case together with his appendix.
(e) Within thirty days of service of contestant's brief and
appendix, contestee shall serve on contestant his printed brief of
the facts and authorities relied on to establish his case together
with his appendix.
(f) Within ten days after service of contestee's brief and
appendix, contestant may serve on contestee a printed reply brief.
(g) The form and length of the briefs, the form of the
appendixes, and the number of copies to be served and filed shall
be in accordance with such rules as the committee may prescribe.
filings of pleadings, motions, depositions, appendixes, briefs, and
other papers
Sec. 14. (a) Filings of pleadings, motions, depositions,
appendixes, briefs, and other papers shall be accomplished by:
[[Page 981]]
(1) delivering a copy thereof to the Clerk of the House of
Representatives at his office in Washington, District of Columbia,
or to a member of his staff at such office; or
(2) mailing a copy thereof, by registered or certified mail,
addressed to the Clerk at the House of Representatives, Washington,
District of Columbia: Provided, That if such copy is not actually
received, another copy shall be filed within a reasonable time; and
(3) delivering or mailing, simultaneously with the delivery or
mailing of a copy thereof under paragraphs (1) and (2) of this
subsection, such additional copies as the committee may by rule
prescribe.
(b) All papers filed with the Clerk pursuant to this Act shall
be promptly transmitted by him to the committee.
time; computation and enlargement
Sec. 15. (a) In computing any period of time prescribed or
allowed by this Act or by the rules or any order of the committee,
the day of the act, event, or default after which the designated
period of time begins to run shall not be included. The last day of
the period so computed shall be included, unless it is a Saturday,
a Sunday, or a legal holiday, in which event the period shall run
until the end of the next day which is neither a Saturday, a
Sunday, nor a legal holiday. When the period of time prescribed or
allowed is less than seven days, intermediate Saturdays, Sundays,
and legal holidays shall be excluded in the computation. For the
purposes of this Act, ``legal holiday'' shall mean New Year's Day,
Washington's Birthday, Memorial Day, Independence Day, Labor Day,
Veterans Day, Thanksgiving Day, Christmas Day, and any other day
appointed as a holiday by the President or the Congress of the
United States.
(b) Whenever a party has the right or is required to do some
act or take some proceeding within a prescribed period after the
service of a pleading, motion, notice, brief, or other paper upon
him, which is served upon him by mail, three days shall be added to
the prescribed period.
(c) When by this Act or by the rules or any order of the
committee an act is required or allowed to be done at or within a
specified time, the committee, for good cause shown, may at any
time in its discretion (1) with or without motion or notice, order
the period enlarged if request therefor is made before the
expiration of the period originally prescribed or as extended by a
previous order, or (2) upon motion made after the expiration of the
specified period, permit the act to be done where the failure to
act was the result of excusable neglect, but it shall not extend
the time for serving and filing the notice of contest under section
3.
death of contestant
Sec. 16. In the event of the death of the contestant, the
contested election case shall abate.
allowance of party's expenses
Sec. 17. The committee may allow any party reimbursement from
the contingent fund of the House of Representatives of his
reasonable expenses of the contested election case, including
reasonable attorneys fees, upon the verified application of such
party accompanied by a complete and detailed
[[Page 982]]
account of his expenses and supporting vouchers and receipts.
repeals
Sec. 18. The following provisions of law are repealed:
(a) Sections 105 through 129 of the Revised Statutes of the
United States (2 U.S.C. 201-225).
(b) The second paragraph under the center heading ``House of
Representatives'' in the first section of the Act of March 3, 1879
(2 U.S.C. 226).
(c) Section 2 of the Act entitled ``An Act further supplemental
to the various Acts prescribing the mode of obtaining evidence in
cases of contested elections'', approved March 2, 1875 (2 U.S.C.
203).
effective date
Sec. 19. The provisions of, and the repeals made by, this Act
shall apply with respect to any general or special election for
Representative in, or Resident Commissioner to, the Congress of the
United States occurring after the date of enactment of this Act.
Approved December 5, 1969.
Prior to the Federal Contested Election Act, election contests were
governed by the provisions of the now repealed Contested Elections Act,
2 USC Sec. Sec. 201-226. This statute itself was derived in part from
an earlier statute dating from the acts of Feb. 19, 1851, with sundry
subsequent amendments.
Except for the contested election of Tunno v Veysey (Sec. 64.1,
infra), all the election contest cases in this chapter were decided
under the prior statute. For this reason, citations are given to the
prior statute, and comparable provisions in the present statute are
generally cited in footnotes.
Congress, in judging election disputes involving its Members, will
look first to the applicable federal law, if any, and then to the
applicable state law.
In the Kemp, Sanders investigation (Sec. 47.14, infra), Congress
looked to the state law regulating the time for the holding of
elections to fill vacancies, there being no federal law on the
subject. -------------------
Application of State Law
Sec. 2.1 At the state level, an election contest may be initiated
pursuant to a state law making it mandatory for the secretary of
state or other state official to conduct a recount at the request
of either candidate.
In the 1938 New Hampshire election contest of Roy v Jenks
(Sec. 49.1, infra), the original official returns from the Nov. 3,
1936, election gave Arthur B. Jenks a plurality of 550 votes over
Alphonse Roy. Mr. Roy then applied to the New Hampshire Secretary of
State for a recount, pursuant to
[[Page 983]]
state law making it mandatory for that official to conduct a recount
upon request of either candidate. Ultimately the House voted to seat
Mr. Roy.