[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9. Election Contests]
[B. Jurisdiction and Powers]
[§ 6. The Clerk; Transmittal of Papers]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 992-997]
CHAPTER 9
Election Contests
B. JURISDICTION AND POWERS
Sec. 6. The Clerk; Transmittal of Papers
Under the modern practice, all papers filed with the Clerk pursuant
to the Federal Contested Elections Act are to be promptly transmitted
by him to the Committee on House Administration.(20) By
long-standing practice, testimony taken by deposition in an election
contest is transmitted to the Clerk.(21)
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20. 2 USC Sec. 393(b).
21. 1 Hinds' Precedents Sec. Sec. 703, 705.
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Under the prior contested elections statute, the Clerk trans
[[Page 993]]
mitted the original notice of contest, answer, and testimony directly
to the committee (pursuant to 2 USC Sec. 223), but other special
motions and papers filed with the Clerk by either party were forwarded
to the Speaker for reference by him to the committee, as reflected in
the precedents which
follow. -------------------
Items Transmitted by Clerk to Speaker
Sec. 6.1 Prior to 1969, among the documents that were communicated to
the Speaker for reference to an elections committee was a
communication to the Clerk from a contestee raising the question as
to whether contestant was barred from proceeding further because of
a failure to comply with some provision of the Federal Contested
Elections Act.
In Clark v Nichols (Sec. 52.1, infra), a 1943 Oklahoma contest, the
contestee sought to bar contestant from further proceeding under the
statute because of a failure to forward certain testimony to the Clerk
within the time required by law. The contestee's letter to this effect
was transmitted to the Speaker for referral.
Sec. 6.2 In the event that certificates of election are submitted by
both parties to a contest, they are included with the communication
from the Clerk to the Speaker.
In the 1934 Kemp, Sanders investigation (Sec. 47.14, infra), the
Clerk transmitted a certificate of election of Mrs. Bolivar E. Kemp,
Sr., signed by the Governor of Louisiana and attested by the secretary
of the State of Louisiana, along with a certificate of election of J.
Y. Sanders, which certificate was prepared by the ``Citizens' Election
Committee of the Sixth Congressional District.'' Ultimately, the House
determined that neither party had been validly elected.
Sec. 6.3 Among the papers which prior to 1969 the Clerk transmitted to
the Speaker for reference to an elections committee was a
contestant's application for extension of time for taking
testimony.
In the 1943 Illinois election contest of Moreland v Schuetz
(Sec. 52.3, infra), the Speaker laid before the House a letter from the
Clerk conveying a request by the contestant for an extension of time
because the time and facilities of the responsible election officials
were
[[Page 994]]
then being totally consumed in preparation for local elections. By
resolution, the House extended the time for taking testimony by 65
days.
Sec. 6.4 The Clerk's letter transmitting a contest has been ordered
printed by the Speaker to include copies of the contestant's notice
of the contest, contestee's answer thereto, contestee's two motions
to dismiss the contest, and contestant's memorandum in explanation
of his failure to take testimony within the time prescribed by law
and of his discontinuance of further action in the matter.
In the 1951 Missouri contested election case of Karst v Curtis
(Sec. 56.2, infra), the contestant brought the contest on the advice of
his county party committee, based on allegations of improper tallying
of ballots in a local election held simultaneously with his own. When
the recount failed to disclose the discrepancies, the contestant
notified the House of his decision to discontinue action, which the
Speaker ordered printed as a House document and referred to the
Committee on House Administration along with the other documents
received by the Clerk. The other documents included: (1) contestant's
notice of contest; (2) contestee's answer; (3) contestee's motion to
dismiss for failure of contestant to take testimony within 40 days
after service of answer; (4) a memorandum from contestant explaining
his failure to take testimony during the 40 days; and (5) contestee's
renewed motion to dismiss for failure of contestant to take testimony
during the 90-day statutory period.
Sec. 6.5 A communication from the Clerk transmitting a memorial
challenging the right of a Member-elect to a seat was referred to a
committee on elections but not printed as a House document
In the 1933 investigation of the citizenship qualifications of a
Member-elect from Pennsylvania, In re Ellenbogen (Sec. 47.5, infra),
the Clerk transmitted to the Speaker a letter containing a memorial and
accompanying papers filed by Harry A. Estep, a former Member,
challenging the citizenship qualifications of the Member-elect. The
communication and accompanying papers were referred to the Committee on
Elections, but not ordered printed.
Sec. 6.6 In his letter of transmittal to the Speaker rel
[[Page 995]]
ative to an election contest, the Clerk may point out that he does
not regard the contestant as competent to bring the contest under
the statutes governing such proceedings.
See In re Plunkett (Sec. 53.2, infra), a 1945 dispute, in which the
Clerk expressed his belief that an individual who was attempting to
contest the election of 79 Members from various states had not been a
party to any of the elections and was therefore incompetent to initiate
such a contest.
Sec. 6.7 In his letter of transmittal to the Speaker, the Clerk may
point out that neither party had taken testimony during the time
prescribed by law and that the contest appears to have abated.
In Roberts v Douglas (Sec. 54.4, infra), a 1947 California contest,
the Clerk's letter, together with copies of the contestant's notice of
contest and contestee's motion to dismiss and a letter from her
attorney in support thereof, were referred by the Speaker to the
Committee on House Administration. The Clerk's letter noted that
testimony had not been timely taken and that the contest appeared to
have abated. The House subsequently agreed to dismiss the contest on a
voice vote and without debate.
Sec. 6.8 The Clerk may include the contestee's answer, though filed for
information only, in a letter transmitted to the Speaker stating
the Clerk's opinion that the contest has abated.
In Browner v Cunningham, a 1949 Iowa contested election case
(Sec. 55.1, infra), the contestee's answer was transmitted by the Clerk
to the Speaker along with the Clerk's letter relating that no testimony
had been received and the opinion of the Clerk that the contest had
abated.
Sec. 6.9 Where the Clerk receives an application for an extension of
time for taking testimony, he communicates that fact to the Speaker
together with accompanying papers, which the Speaker then refers to
an appropriate committee.
In Sullivan v Miller (Sec. 52.5, infra), a 1943 Missouri contest,
an application for an extension of time for taking testimony, although
filed before the contest had been formally presented to the House, was
communicated by the Clerk to the Speaker together
[[Page 996]]
with accompanying papers, which the Speaker referred to a committee and
ordered printed.
Sec. 6.10 In communicating with the Speaker relative to an apparent
election contest and papers pertaining thereto, the Clerk may rely
on ``unofficial knowledge.'' And the Speaker may refer such
communication and accompanying papers to a committee on elections.
In Reese v Ellzey (Sec. 47.13, infra), a 1934 Mississippi contest,
the Speaker laid before the House a letter from the Clerk transmitting
his ``unofficial knowledge'' of the contest, together with contestant's
letter of withdrawal therefrom. The Clerk's letter and accompanying
papers were referred to a committee on elections and ordered printed.
Sec. 6.11 The Clerk's letter transmitting a notice of contest to the
Speaker may disclose that the contestee has not filed a brief in
support of his position within the time prescribed by law.
In the 1947 Georgia election contest of Mankin v Davis (Sec. 54.2,
infra), the Clerk's letter, which the Speaker ordered printed as a
House document, stated that the contestant had complied with the
requirements to forward his brief to the contestee and file notice
within 30 days, but that the contestee had not submitted his brief in
answer within the requisite time.
Sec. 6.12 In the Clerk's letter of transmittal, he may include the
information that contestant has not forwarded testimony to his
office in the manner prescribed by law.
In Hicks v Dondero (Sec. 53.1, infra), a 1945 Michigan contest, the
Clerk's letter of transmittal to the House related that he had received
packets of material which had not been addressed to the Clerk, or
prepared in the manner required by law. The Clerk's letter further
stated that since the proper statutory procedure had not been followed,
he was transmitting all of the material received to the House for its
disposition.
Production of Documents Under Subpena
Sec. 6.13 The Clerk has refused to comply with a subpena duces tecum
served upon him by a contestant's notary public requesting
production of documents filed by the contestee.
In the 1934 Illinois contested election case of Weber v Simpson
[[Page 997]]
(Sec. 47.16, infra), the contestant's notary public served a subpena
duces tecum upon the Clerk, who refused to comply with it without
permission of the House. The subpena requested production of documents
filed by the contestee in the dispute. The subpena and accompanying
papers were referred to the Committee on the Judiciary and ordered
printed. The 73d Congress did not authorize the Clerk to respond to the
subpena.