Deschler's Precedents, Volume 2, Chapters 7 - 9

[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[E. Practice and Procedure]
[§ 19. Parties]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1027-1029]
 
                               CHAPTER 9
 
                           Election Contests
 
                       E. PRACTICE AND PROCEDURE
 
Sec. 19. Parties

    The Federal Contested Elections Act uses the term ``candidate'' 
with reference to those persons who may initiate a suit under the 
statute.⁽³⁾ This term is defined as referring to an 
individual (1) whose name is printed on the official ballot for 
election to the House, or (2) who seeks election to the House by write-
in votes, provided he is qualified and eligible to receive such votes, 
and provided write-in voting for such office is 
permitted.^(4)~
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 3. 2 USC Sec. 382 (a).
 4. 2 USC Sec. 381 (b).
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    Under the prior contested elections statute,^(5)~ the 
phrase ``any person'' was used with reference to those authorized to 
file notice of intention to contest an election.
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 5. See former 2 USC Sec. 201.
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    However, even under this legislation, a person who had not been a 
candidate in the general election was deemed incompetent to institute a 
contest in the House, though he had been a candidate in the primary 
election.^(6)~
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 6. See Sec. 19.1, infra.
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    An election involving the Delegate to the House of Representatives 
from the District of Columbia is governed by the Federal Contested 
Elections Act, as is one involving the Resident Commissioner to the 
Congress [from Puerto Rico].^(7)~
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 7. 2 USC Sec. 25 (note); 2 USC 
        Sec. 381(a).                          -------------------
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Contestants as Candidates in General Election

Sec. 19.1 Where the contestant was not a candidate in the general 
    election, but merely in the party primary, the election committee 
    will recommend dismissal of the contest on the basis of the 
    contestant's lack of standing.

    In the 1969 Georgia election contest of Lowe v Thompson (Sec. 63.1, 
infra), the election committee considered the notice of contest, brief 
of the contestant, oral argument, and precedents of the House, and 
recommended dismissal of the fourth contested election case brought by 
the contestant in 20 years, for lack of standing. The contestant, who 
did not allege any fraud or wrongdoing on the part of the contestee, 
was not a candidate in the general election, having lost his own 
party's primary.

[[Page 1028]]

    Similarly, in the 1967 contest between the same parties (Sec. 62.1, 
infra), the committee on elections had declared that there was no 
precedent for depriving a member of his seat solely on the basis of the 
irregularity of the nomination of his opponent in the general election, 
and concluded that Mr. Lowe, not being a candidate in the general 
election, had no standing to bring a contest under the contested 
election law.

Sec. 19.2 The House has adopted a resolution providing that one who was 
    not a candidate in an election for a seat in the House was not 
    competent to contest the election.

    In the 1965 New York contested election case of Frankenberry v 
Ottinger (Sec. 61.1, infra), by a vote of 245 yeas to 102 nays, the 
House agreed to a resolution that dismissed the contest and held the 
contestant, who had not been a candidate in the election, not to be 
competent to bring a contested election contest under 2 USC 
Sec. Sec. 201 et seq. During debate, proponents of the resolution cited 
the 1941 Ohio contested election of Miller v Kirwan (Sec. 51, infra), 
and In re Voorhis, 291 F 673 (S.D. N.Y. 1923) in support of their 
position. In the former, the House had similarly found a no candidate 
not to be competent to bring an election contest; and in the latter, 
the court had held that questions as to the application of the 
contested election statute are justiciable by the House and the House 
alone.

Sec. 19.3 Contestants who have not been candidates at the election have 
    no standing to invoke the contested election statute.

    In the 1965 Mississippi election contest of Wheadon et al. v 
Abernethy et al. [The Five Mississippi Cases] (Sec. 61.2, infra), the 
election committee report recommended dismissal of five election 
contests in which the contestants had not been candidates in the 
general election of November 1964 for Members of the U.S. House of 
Representatives.
    The contestants alleged that large numbers of Negroes had been 
excluded from the electoral process through intimidation and violence, 
with the result that the free will of the voters had not been 
expressed. The desired relief was to have the House unseat the 
contestees and vacate the elections.
    The contestants had been selected at an unofficial ``election,'' 
which was held without any authority of law in the state.

[[Page 1029]]

    The House followed its precedents in dismissing the contests 
because the contestants lacked standing under 2 USC Sec. Sec. 201 et 
seq.

Sec. 19.4 A person who was a candidate in the primary election, but not 
    in the general election won by contestee, is not competent to 
    institute a contest in the House.

    In Miller v Kirwan (Sec. 51.1, infra), a 1941 Ohio contest, the 
House dismissed a contest initiated by a person who had been a 
candidate for the Democratic nomination from the 19th Congressional 
District of Ohio in the primary election, but not in the ensuing 
general election, on the ground that the contestant was incompetent to 
initiate the contest.

Sec. 19.5 A contestant who had been a candidate in the primary election 
    but who had not been a candidate in the general election instituted 
    a contest under the statute governing contested election cases.

    In the 1951 Georgia contested election case of Lowe v Davis 
(Sec. 56.3, infra), the contestant, who had been a candidate in the 
party primary, but not in the general election, challenged the 
contestee, who had prevailed in both the primary and the general 
election. The Committee on House Administration ultimately recommended 
dismissal of the contest for failure to take testimony within the time 
prescribed and the House agreed to a resolution dismissing the contest.

Sec. 19.6 To entitle a person to bring a contest under the statute, he 
    must have been a candidate for the seat in the House during the 
    general election in question.

    See In re Plunkett (Sec. 53.2, infra), wherein the Chairman of the 
Committee on the Judiciary advised the Members of the House to ignore 
proceedings contesting the 1944 elections of 79 Members of the House 
from states having poll taxes.

[[Page 1030]]