Deschler's Precedents, Volume 2, Chapters 7 - 9 - § 22. Form and Contents of Notice

[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[F. Notice of Contest]
[§ 22. Form and Contents of Notice]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1033-1035]
 
                               CHAPTER 9
 
                           Election Contests
 
                          F. NOTICE OF CONTEST
 
Sec. 22. Form and Contents of Notice

    Under the Federal Contested Elections Act, the notice of contest 
must state with particularity the grounds on which the contestant 
relies. The notice must also state that an answer to it must be served 
on contestant within 30 days after service of the 
notice.^(13)~ The Act further requires that the notice of 
contest be signed and verified.^(14)~
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13. 2 USC Sec. 382(b).
14. 2 USC Sec. 382(b).
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    The notice of contest should also claim right to the contestee's 
seat, as the contestee may, at his option, assert the failure to claim 
right to the seat as a defense under the provisions of 2 USC 
Sec. 383(b)(4). Similarly, while the act does not specify what 
constitutes grounds that the contestant may assert to contest the 
election, the contestee may, at his option, raise as a defense the 
failure of the notice of contest to state grounds ``sufficient to 
change result of election'' under 2 USC Sec. 383(b)(3). Therefore, the 
notice of contest should state with particularity the grounds upon 
which the contestant contests the election and such grounds should be 
sufficient to change the result of the 
election.                          -------------------

Failure to State Grounds With Particularity

Sec. 22.1 A contestee may request dismissal where the allegations in 
    the notice are ``vague and uncertain and lacking in the necessary 
    particulars.''

    In Gormley v Goss (Sec. 47.9, infra), a 1934 Connecticut contest, 
contestant alleged that through ``fraud, irregularities, corruption, 
and deceit'' on the part of contestee's agents at a voting booth he was 
deprived of ``many votes far in excess'' of the number of votes 
necessary to overcome his opponent's majority. Contestee sought 
dismissal on the ground that such allegations were ``vague and 
uncertain and lacking in the necessary particulars.'' The committee 
heard argument as to the sufficiency of notice, and while deciding the 
contest on other grounds, agreed that contestant's motion did not meet 
the statutory requirements.

Sec. 22.2 A contestee may move to dismiss on the ground that the 
    contestant has failed to state with particularity the grounds on 
    which he relies in his notice of contest.

    In Chandler v Burnham (Sec. 47.4, infra), a 1934 California 
contest, contestant served notice alleging

[[Page 1034]]

that ``he had received a majority of all the lawful votes cast''; that 
election officials had rejected as void certain ballots that had been 
cast for him; that there were deviations in the number of ballots 
delivered to and the number accounted for in certain precincts; that 
many 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 his case with particularity, declared 
that contestant's notice of contest had been insufficient in this 
respect and would under other circumstances afford grounds for 
sustaining contestee's motion to dismiss.

Sec. 22.3 Where contestant's notice does not specify with particularity 
    the grounds upon which he relies in the contest, and no testimony 
    is taken within the prescribed time, the House may sustain the 
    contestee's dismissal motion based on those grounds.

    In Roberts v Douglas (Sec. 54.4, infra), a 1947 California contest, 
contestant's notice recited only:

        Contest of your right to hold said seat is entered upon the 
    grounds of failure to meet residence requirements under both the 
    Constitution of the United States and the State of California.
        Additional grounds for contest of your right to hold said 
    congressional seat is to be found in many fraudulent practices 
    alleged in the election of November 5, 1946, which justify 
    congressional investigation.

    There was no testimony taken within the prescribed period. The 
Speaker referred the Clerk's letter, together with a letter from the 
contestee's attorney and contestee's motion to dismiss to the Committee 
on House Administration, and ordered all the papers printed as a House 
document. The committee, through a resolution offered by Mr. Ralph A. 
Gamble, of New York, then recommended dismissal of the contest, with 
which resolution the House agreed.⁽¹⁵⁾
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15. See also Michael v Smith, Sec. 54.3, infra.
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Necessity of Signature

Sec. 22.4 A notice of contest is not sufficient if it does not bear the 
    original signature of the contestant.

    In the 1957 Iowa election case of Dolliver v Coad (Sec. 57.2, 
infra), the House agreed to a resolution without debate providing that 
it

[[Page 1035]]

would not recognize an unsigned paper as valid notice of contest and 
that the contestant's unsigned notice of contest was not in the form 
required by the applicable statute (2 USC Sec. 201).⁽¹⁶⁾
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16. The requirement as to contestant's signature is presently embodied 
        in 2 USC Sec. 382(b).
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