[Cannon's Precedents, Volume 6]
[Chapter 171 - General Election Cases, 1923 To 1925]
[From the U.S. Government Publishing Office, www.gpo.gov]


                 GENERAL ELECTION CASES, 1923 TO 1925.

-------------------------------------------------------------------

   1. Cases in the first session of the Sixty-eighth Congress. 
     Sections 160, 163.
   2. Cases in the second session of the Sixty-eighth Congress. 
     Sections 164, 165.

-------------------------------------------------------------------

  160. The New York election case of Chandler v. Bloom, in the Sixty-
eighth Congress.
  The House, overruling its committee, declined to reject the vote of 
precincts relative to which charges of fraud were not considered to 
have been substantiated.
  Instances wherein the House declined to follow its committee in 
awarding the seat of a Member of the minority to a Member of the 
majority party.
  Discussion of impartiality of the House as evidenced in the 
consideration and disposition of contested-election cases.
  Failure of voters to comply with requirements of State election laws 
was held by an Election Committee to invalidate votes so cast.
  The Elections Committee in an unsustained report held that illegal 
votes, the nature of which could not be ascertained, should be 
subtracted pro rata from the votes of the contestant and contestee.
  An amended notice of contest having been filed by contestant was 
answered by contestee.
  Instance in which the contestant in an election case was permitted to 
address the House in his own behalf, and closed the debate.
  On February 28, 1924,\1\ Mr. Richard N. Elliott, of Indiana, from the 
Committee on Elections No. 3, submitted the report of a majority of the 
committee in the New York case of Chandler v. Bloom. Samuel Marx, who 
had been elected to the House from the nineteenth district of the State 
of New York on November 7, 1922, died before Congress convened, and a 
special election was held on January 30, 1923, to fill the vacancy. The 
official returns gave the contestee 17,909 votes and the contestant 
17,718 votes, a plurality for the former of 191 votes. An official 
recount of the ballots made pursuant to State law upon application of 
the contestant gave contestee 17,802 undisputed ballots and contestant 
17,676 undisputed ballots, a majority for the former of 126.
-----------------------------------------------------------------------
  \1\ First session Sixty-eighth Congress, House Report No. 224.
Sec. 160
  The remaining ballots were canvassed by the committee of the House of 
Representatives, which awarded 55 additional votes to the contestee and 
28 additional votes to the contestant, a net majority of 153 votes in 
favor of the sitting Member.
  On March 3, 1923, the contestant served on the contestee a notice of 
contest setting forth numerous grounds of contest, and on May 10, 1923, 
an amended notice of contest setting forth additional grounds of 
contest. The grounds of contest as presented in both notices of contest 
were considered by the committee and may be divided into two classes, 
one relating to illegal voting by persons not properly registered or 
failing to comply with State election laws and the other to charges of 
frauds and irregularities in certain precincts designated in the notice 
of contest.
  The election laws of the State of New York require registration of 
voters and provide for the transfer of voters removing from one 
precinct to another upon application to the board of elections. Fifteen 
voters were shown to have removed from the district in which they were 
registered and in which they had voted at the regular election, and to 
have voted in other precincts at the special election without having 
secured such transfers from the board of elections. The majority of the 
committee find:

  That of the 15 illegal votes cast by the voters who had lost their 
right to vote by moving to another precinct, 11 of them were cast for 
Bloom and should be deducted from his total vote, and that 3 were cast 
for Chandler and should be deducted from his total vote. The committee 
is unable to determine from the evidence for whom the other vote was 
cast and finds that it should be deducted pro rata from the votes of 
the contestant and contestee.

  The election laws of the State of New York also require the signature 
of voters in the official registry before voting. It was shown that 6 
voters failed to comply with this requirement of the law, and the 
majority find--

  That of the 6 votes cast by the voters who failed to sign their names 
in the official registry in the twenty-ninth election district of the 
eleventh assembly district, the evidence does not disclose for whom 
they were voted, and if they were rejected it would have no bearing 
upon this case on account of the fact that they should in that event be 
subtracted pro rata from the votes of the contestant and contestee; for 
this reason the committee does not feel that it is necessary to decide 
the question of the legality of said votes.

  The minority fall to controvert either the findings of fact or the 
conclusions reached by the majority on these questions. On the 
remaining issues in the case, however, the majority and minority 
reports divide sharply.
  The contestant contended that certain precincts of the eleventh and 
seventeenth assembly districts should be rejected because: 1. The board 
of inspectors was illegally constituted. 2. Unused ballots were stolen 
and substituted for voted ballots. 3. Illegal votes were counted. 4. 
Electioneering and pictures of the sitting Member were permitted within 
100 feet of the polling place. 5. Unsworn persons handled the ballots. 
6. Workers for contestant were intimidated and driven away. 7. 
Representatives of contestee were under the influence of liquor and 
assumed an attitude amounting to intimidation. 8. Ballots were 
improperly counted. 9. Inspectors failed to report unused ballots which 
were missing.
  These charges are taken up by the minority report and denied in 
detail, both as unsupported by evidence and as being without material 
effect upon the validity
                                                             Sec. 160
of the returns, and resolutions are recommended denying the election of 
the contestant and confirming the right of the sitting Member to his 
seat.
  The majority report makes no detailed reference to specific charges 
preferred by the contestant but concludes:

  That in the twenty-third election district of the eleventh assembly 
district and in the thirtieth and thirty-first election districts of 
the seventeenth assembly district there was such an utter, complete, 
and reckless disregard of the provisions of the election laws of the 
State of New York involving the essentials of a valid election, and the 
returns of the election boards therein are so badly tainted with fraud 
that the truth is not deducible therefrom, and that it can be fairly 
said that there was no legal election held in the said election 
districts.
  Consequently in accordance with the universally accepted principles 
of the law governing contested elections and in conformity with a long 
line of congressional precedents, the committee is of the opinion that 
the entire returns of the twenty-third election district of the 
eleventh assembly district and the thirtieth and thirty-first districts 
of the seventeenth assembly district should be rejected.

  Rejecting the returns from these three precincts, and deducting from 
the total vote of the contestant the three votes illegally cast for 
him, and from the total vote of the contestee the 11 votes illegally 
cast for him in the remaining precincts, the majority conclude that the 
contestant received 17,504 votes and the contestee 17,280 votes, a 
majority of 224 votes for the contestant.
  The majority of the committee therefore recommend to the House the 
adoption of the following resolutions:

  Resolved, That Sol Bloom was not elected a Member of the House of 
Representatives from the nineteenth congressional district of the State 
of New York in this Congress and is not entitled to retain a seat 
herein.
  Resolved, That Walter M. Chandler was duly elected a Member of the 
House of Representatives from the nineteenth congressional district of 
the State of New York in this Congress and is entitled to a seat 
herein.

  The report was debated at length in the House on April 10.\1\ On 
motion of Mr. Elliot, by unanimous consent, the Members in charge of 
the time allotted for debate were permitted to yield time to the 
contestee and the contestant, respectively, and the latter closed the 
debate.
  In the course of the debate emphasis was laid upon the fact that the 
New York delegation in the House was almost equally divided politically 
and the unseating of the sitting Member would change the political 
complexion of the delegation by a majority of one Member, a situation 
which might prove material from a political point of view in event of 
the pending presidential election being thrown into the House by the 
failure of the Electoral College to make a choice. Excerpts from 
circular letters by both party whips urging members of their respective 
parties to be present in the House when the case was to be decided were 
read, and the impartiality of the House in deciding past election 
contested-election cases without regard for party considerations was 
discussed at length.
  The question being first taken on the substitute proposed by the 
minority, the substitute was agreed to, yeas 210, nays, 198. The 
resolution as amended by the substitute was then agreed to, yeas 209, 
nays 198.
-----------------------------------------------------------------------
  \1\ Record, p. 6034; Journal, p. 419.
Sec. 161
  It is to be noted that Mr. Bloom, the sitting Member whose title to 
his seat was thus sustained, was a member of the minority party in the 
House, while Mr. Chandler, the unsuccessful contestant was a member of 
the majority party.
  161. The Georgia election case of Clark v. Moore, in the Sixty-eighth 
Congress.
  No evidence having been adduced to sustain any allegation of 
contestant, the House confirmed the title of the sitting Member.
  Instance in which an elections committee recommended that unwarranted 
contests be discouraged.
  On March 26, 1924,\1\ Mr. John M. Nelson, of Wisconsin, from the 
Committee on Elections No. 2, submitted the report of the committee on 
the Georgia case of Don H. Clark v. R. Lee Moore.
  The following statement of the case appears in the report:

  At the election held in the first congressional district of the State 
of Georgia on November 7, 1922, according to the official returns R. 
Lee Moore, the contestee, who was the Democratic candidate, received 
5,579 votes; P. M. Anderson, running as a Republican candidate, 
received 426 votes; Don H. Clark, running as a Republican candidate, 
received 196 votes. As a result of these returns R. Lee Moore, the 
contestee, was declared elected and a certificate of election was duly 
issued him by the proper State officials.

  The contestant in his notice of contest alleged various errors, 
frauds, and irregularities, including the burning of ballots, failure 
to open the polls, and conspiracy to prevent his name from appearing on 
the ballot.
  The committee, considering each charge separately, are unanimous in 
reporting that no evidence was adduced in support of any charge set 
forth in contestant's brief.
  After quoting excerpts from contestant's brief, the committee 
recommend:

  The above quotations are typical of the nature of the contestant's 
brief in this case, and your committee is of the opinion that such 
loose, extravagant, and unfounded charges being made the basis for an 
election contest with the consequent expense to the Government should 
be discouraged in the future.

  The committee therefore find that the contestee was duly elected and 
submit resolutions declaring contestant not elected and confirming the 
title of the sitting Member to his seat.
  The report was called up in the House on June 3,\2\ 1924, and agreed 
to without debate or division.
  162. The Illinois election case of Gorman v. Buckley, in the Sixty-
eighth Congress.
  A contestant having failed to take or file testimony within the time 
required by law, the House without further examination confirmed 
returned Member's title.
  Form of motion to strike depositions from the record.
  Instance wherein the House declined to seat a contestant belonging to 
the majority party in the House.
-----------------------------------------------------------------------
  \1\ First session Sixty-eighth Congress, House Report No. 367.
  \2\ Record p. 10323; Journal, p. 369.
                                                             Sec. 162
  Application of a rule of the Committee on Elections.
  On May 13, 1924,\1\ Mr. Richard N. Elliott, of Indiana, from the 
Committee on Elections No. 3, submitted the report of the committee on 
the Illinois case of John J. Gorman v. James R. Buckley.
  At this election there were three candidates, but the contest was 
between contestant and the sitting Member, who had been returned by a 
plurality of 42 votes. Contestant served notice of contest on January 
2, 1923, alleging error, mistake, and irregularity, to which contestee 
answered January 27, 1923.
  Following the printing of testimony and filing of briefs, the 
contestee filed the following motion to strike depositions from the 
record:

To the honorable the House of Representatives of the Sixty-eighth 
Congress of the United States:
  Now comes James R. Buckley, contestee herein, by William Rothman, his 
attorney, and moves that the depositions herein and each of them filed 
herein by the commissioners respectively designated by the parties to 
hear and take the testimony be stricken from the record, on the ground 
that said commissioners failed to file the said depositions with the 
Clerk of this House, ``without unnecessary delay'' after the taking of 
the same was completed as required by section 127 of the Revised 
Statutes as amended, in that the same were not filed within 30 days 
after the completion of the taking of mid testimony as required by the 
rules of the Committee on Elections of this honorable House; and in 
this connection the contestee respectfully represents that the taking 
of testimony herein was completed on April 28, 1923, at the hour of 
12:30 o'clock p.m., at which time the further hearing of the said cause 
was adjourned sine die; that the only further proceedings had in said 
cause subsequent to said April 28, 1923, were hearings which were had 
before his honor, Judge Wilkerson, in the United States district court, 
which were had on June 2 and June 4, 1923; and that no further 
proceedings of any kind or nature were had in the said cause subsequent 
to said June 4, 1923; and that the depositions filed herein by the 
commissioner designated by the contestant were filed with the Clerk of 
this honorable House on, to wit, November 5, A.D. 1923, more than 191 
days following the completion of the taking of testimony and more than 
154 days after the date when the last proceedings of any sort were had 
in said contest.
  Dated at Chicago, Ill., November 20, 1923.

  The committee report as findings of fact:

  The contestee's answer was served on contestant January 27, 1923. The 
act of Congress approved March 2, 1875 (U. S. Stat. L., vol. 18, ch. 
119, p. 338), provides that in all contested-election cases the time 
allowed for taking testimony shall be 90 days, and the testimony shall 
be taken in the following order: The contestant shall take testimony 
during the first 40 days, the returned Member during the succeeding 40 
days, and the contestant may take testimony in rebuttal only during the 
remaining 10 days of said period.
  In this case, therefore, the contestant, under said law, was allowed 
until March 9 in which to take his testimony in chief and the law 
required that the taking of all testimony should be completed on April 
27, 1923. As a matter of fact, however, the contestant took only a part 
of his testimony in chief in the first 40 days, which expired on the 
9th day of March, 1923. The contestee took no testimony in the next 40 
days. During the 10-day period at the end of the 90 days the contestant 
took some additional testimony, which was not in rebuttal, but was 
intended as testimony in chief. The testimony in this case was filed 
with the Clerk of the House of Representatives, on the 5th day of 
November, 1923.

  After citing the Federal statute providing that all testimony in 
contested-election cases shall be taken within 90 days and forwarded 
``without unnecessary delay'' to the Clerk of the House, and quoting 
rule 8 of the Committee on Elections,
-----------------------------------------------------------------------
  \1\ First session Sixty-eighth Congress, House Report No. 722.
Sec. 163
construing the phrase ``without unnecessary delay'' to mean within 30. 
days of completion of taking testimony, the committee reports:

  Your committee finds that the contestant in this case ignored the 
plain mandate of the law and the rules of the Committees on Elections 
of the House and that he has no standing as a contestant before the 
House of Representatives.

  In conclusion the committee find--

  That the contestant, not having complied with the provisions of the 
law governing contested-election cases, has no case which can be 
legally considered by the committee or by the House of Representatives.

  The committee therefore recommend the adoption of resolutions 
declaring the contestant was not elected, and confirming the title of 
sitting Member to his sent, which were unanimously agreed to by the 
House, June 3, 1924, without debate.
  163. The New York election case of Ansorge v. Weller in the Sixty-
eighth Congress.
  The House sustained a recount authorized by and conducted pursuant to 
State laws.
  Objections by contestee that notice of contest was insufficient were 
disregarded by the elections committee.
  Form of resolution providing for inspection of contested ballots.
  Form of resolution providing program of procedure in recount of 
contested ballots.
  While not considering the committee bound by stipulations and 
agreements of parties, such agreements were substantially sustained by 
the committee.
  On May 14, 1924,\1\ Mr. Clint R. Cole, of Ohio, from the Committee on 
Elections No. 1, submitted the report in the New York case of Martin C. 
Ansorge v. Royal H. Weller.
  Sitting Member had been returned by an official plurality of 245 
votes, which the contestant attacked on the grounds that--

  The count, canvass, and handling of the ballots in the election 
districts of the said congressional district were not conducted in the 
lawful, orderly, and proper manner provided for by the election law to 
prevent fraud and unintentional error.

  A motion by contestee that contestant's petition be dismissed for the 
reason that his notice of contest was--

insufficient in that it contained no facts or proof whatsoever to raise 
any presumption whatever of mistake, irregularity, or fraud in the 
original count or canvass,

was disregarded by the committee.
  A recount of the ballots, made by both parties, pursuant to the 
election laws of the State of New York, gave the contestant a plurality 
of 115 votes over the contestee on conceded ballots, with 820 ballots 
remaining in dispute.
-----------------------------------------------------------------------
  \1\ First session Sixty-eighth Congress, House Report No. 756.
                                                             Sec. 163
  On March 31, 1924,\1\ the following resolution providing for a 
recount of the 820 disputed ballots was agreed to by the House:

  Resolved, That John Voorhis, Charles E. Heydt, James Kane, and Jacob 
Livingston, constituting the board of elections of the city of New 
York, State of New York, their deputies or representatives, be, and 
they are hereby, ordered to appear by one of the members, the deputy, 
or representative, before Elections Committee No. 1 of the House of 
Representatives forthwith, then and there to testify before said 
committee or a subcommittee thereof, in the contested election case of 
Martin C. Ansorge, contestant, v. Royal H. Weller, contestee, now 
pending before said committee for investigation and report; and that 
said board of elections bring with them all the disputed ballots marked 
as exhibits cast in every election district at the general election 
held in the twenty-first congressional district of the State of New 
York on November 7, 1922. That said ballots be brought to be examined 
and counted by and under the authority of said Committee on Elections 
in said case; and to that end, that the proper subpoena be issued to 
the Sergeant at Arms of this House commanding him to summon said board 
of elections, a member thereof, or its deputy or representative, to 
appear with such ballots as a witness in said case; and that the 
expense of said witness or witnesses, and all other expenses under this 
resolution, shall be paid out of the contingent fund of the House, and 
that said committee be, and hereby is, empowered to send for all other 
persons or papers as it may find necessary for the proper determination 
of said controversy; and also be, and it is, empowered to select a 
subcommittee to take the evidence and count said ballots or votes, and 
report same to Committee on Elections No. 1, under such regulations as 
shall be prescribed for that purpose; and that the aforesaid expense be 
paid on the requisition of the chairman of said committee after the 
auditing and allowance thereof by said Committee on Elections No. 1.

  The ballots in question having been brought before the committee, 
counsel for contestee submitted a program of procedure which was agreed 
to by all parties and adopted by the committee, as follows:

  Resolved, That in order to expedite the work of the committee, 
counsel for the respective candidates be, and they hereby are, 
instructed, during the next hour, to arrange the various ballots which 
have been brought from New York to Washington into the following piles:
  1. Ballots marked otherwise than with a pencil having black lead--
that is, ballots marked in ink or with a blue crayon or with an 
indelible pencil, etc.
  2. Ballots bearing a mark for the office of Congressman challenged on 
the ground that the lines of the alleged cross mark do not cross--i.e., 
alleged y's, v's, and t's.
  3. Ballots bearing a cross mark where the lines cross but challenged 
because of extra lines forming part of the cross, or because of other 
irregularities in character or form of the mark.
  4. Ballots bearing a cross mark outside of the voting squares.
  5. Ballots bearing two cross marks for the office of Congressman, 
irrespective of whether such marks were made by the voter or claimed to 
be reprints or impressions.
  6. Ballots bearing erasures, smudges, or ink marks.
  7. Ballots bearing any name written on the ballot.
  8. Ballots challenged because they appear to have been torn by some 
one.
  9. Ballots other than the above which are challenged by either party 
because of extra lines, dots, and dashes disconnected with the cross 
mark.
  10. All other ballots.

  During the argument before the committee counsel for both parties 
agreed as to a number of the ballots in dispute as belonging to one 
party or the other, or as being void or remaining in dispute.
  Upon the close of argument the committee proceeded, in executive 
session, to divide the ballots into the 10 groups agreed upon and 2 
additional groups.
-----------------------------------------------------------------------
  \1\ Record, p. 5271.
Sec. 164
  As to weight accorded stipulations by parties and their counsel, the 
report says:

  While not considering that the committee was bound by the 
stipulations and agreements of counsel as to good, void, and protested 
ballots, the members of the committee have substantially sustained the 
agreements of counsel.

  The final canvass by the committee is tabulated as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                            Good
                                                                                        ballots for      Good
                                                                                                     ballots for
                                                                                        contestant.   contestee.
----------------------------------------------------------------------------------------------------------------
Class 1...............................................................................           17            8
Class 2...............................................................................           12           20
Class 3...............................................................................           12            7
Class 4...............................................................................  ...........            1
Class 5...............................................................................            2           33
Class 6...............................................................................           30           43
Class 7...............................................................................            2            2
Class 8...............................................................................  ...........            1
Class 9...............................................................................            5           15
Class 10..............................................................................           29           70
Class 11..............................................................................            7           29
Class 12..............................................................................           64           69
Envelopes.............................................................................            7           14
                                                                                       -------------------------
    Total.............................................................................          187          312
New York recount totals...............................................................       31,892       31,777
                                                                                       -------------------------
    Grand total.......................................................................       32,079       32,089
----------------------------------------------------------------------------------------------------------------

  The sitting Member having received a plurality of 10 votes thus 
tabulated, the committee recommended the adoption of the following 
resolutions:

  Resolved, That Martin C. Ansorge was not reelected a Representative 
from the twenty-first congressional district of the State of New York 
and is not entitled to a seat herein.
  Resolved, That Royal H. Weller was duly elected a Representative from 
the twenty-first congressional district of the State of New York and is 
entitled to retain a seat herein.

  On May 27, 1924,\1\ the resolutions were unanimously agreed to by the 
House without debate.
  164. The New York election case of Frank v. LaGuardia, in the Sixty-
eighth Congress.
  Contestant failing to take testimony within time provided by law, the 
House discharged the committee from further consideration of the case.
  Laches of contestant in prosecuting contest having rendered 
impossible the submission of final report by elections committee within 
time provided by rule of the House, the committee declined to consider 
the merits of the case and were discharged.
  Stipulation by parties in the nature of an agreement can not waive 
plain provisions of the statutes.
  Procedure to be followed where parties require time beyond that 
provided by law.
  While constitutional provisions exempt the House from the operation 
of the law relating to the taking of testimony in election cases, such 
law is binding upon the parties thereto.
-----------------------------------------------------------------------
  \1\ Journal, p. 593; Record, p. 9631.
                                                             Sec. 164
  Effort by opposing counsel to profit by laches authorized in void 
stipulations, to which he was himself party, were criticised as 
unethical.
  In the absence of evidence of fraud or irregularities, proof of which 
would change the result of the election, the committee declined to 
subpoena ballots.
  The House and its committees are not to be considered boards of 
recount, and returns made by boards, charged with that duty by the 
State in which the election is held, are presumed correct until 
impeached by proof of irregularity or fraud.
  On January 7, 1925,\1\ Mr. John M. Nelson, of Wisconsin, from the 
Committee on Elections No. 2, submitted the report of the committee in 
the New York case of Henry Frank v. Fiorello H. LaGuaxdia.
  The official returns gave contestee 8,492 votes, contestant 8,324 and 
all other candidates a total of 5,358 votes, a plurality of 168 votes 
for the sitting Member.
  On December 28, 1922, the contestant served notice of contest setting 
forth numerous grounds for contest of a general nature. The taking of 
testimony in behalf of contestant began February 23, 1923, and 
continued until November 30, 1923.
  Taking of testimony by contestee began on December 20, 1923, and was 
concluded on March 1, 1924. The case was reported by the Clerk of the 
House to the Speaker on June 3, 1924, and briefs were filed, the first 
on June, 30 and the last on August 28, 1924.
  On March 1, 1923, the parties entered into stipulation as follows:

  It is stipulated by and between the parties hereto, through their 
respective attorneys and counsel, that the time limit as fixed by the 
rules of the House of Representatives and the statues of the United 
States governing contested elections shall be deemed as directory and 
not mandatory, and that either party may have more than the period of 
time allotted and fixed therein within which to present his respective 
case in this proceeding, and both sides waive specifically any right to 
object that they may have under the law with respect to the time so 
fixed.

  In repudiation of this stipulation the committee hold:

  A stipulation by parties in the nature of an agreement can not waive 
the plain provision of the statutes.

  Indicating proper procedure to have been followed where further time 
was required, the committee quote:

  If either party to a case of contested election should desire further 
time and Congress should not then be in session, he should give notice 
to the opposite party of a procedure to take testimony and preserve the 
same and ask that it be received, and upon good reason being shown, it 
doubtless would be allowed.

  The committee add:

  It is to be noted that Congress was in session from December 3, 1922, 
to June 7, 1924, but parties did not ask the consent of Congress either 
to extend the time or to validate the stipulation even in the face of a 
special rule of the House that cases must be disposed of within six 
months after the opening of the Congress.
-----------------------------------------------------------------------
  \1\ Second session Sixty-eighth Congress, House Report No. 1082.
Sec. 164
  The law providing for the taking of evidence has been held to be not 
binding upon the House. It has been correctly stated, ``That the House 
possesses all the power of a court having jurisdiction to try to the 
question who was elected. It is not even limited to the power of a 
court of law merely, but under the Constitution clearly possesses the 
functions of a court of equity also.''
  The law, however, is binding upon the parties, as evidenced by the 
use of the mandatory word ``shall``. The House alone, upon proper 
application, may grant a further extension of the time for taking 
evidence for cause shown as a matter of equity but not of right, or to 
protect the rights of the people of a district.

  In confirmation of this interpretation, the committee cites 
precedents in which the House has granted or refused extension of time 
on application, and differentiates between instances in which the 
merits of the case warranted or did not warrant such extension.
  Agreement of contestee's attorney to the stipulation is not 
considered by the committee to mitigate contestant's laches. The report 
says:

  While the contestee's attorney joined in the stipulation to waive the 
requirements of the law, indeed, himself dictated it and was afterwards 
guilty of a breach of legal ethics when he raised the point of lack of 
diligence, nevertheless, it is incumbent upon the contestant to 
prosecute his case speedily. The contestee holds the certificate of 
election. His title can only be overturned upon satisfactory evidence 
that he was not elected. His seat in this body can not be jeopardized 
by the faults of others. It has been held that the House has no right 
unnecessarily to make the title of a Representative to his seat depend 
upon the acts, omissions, diligence, or laches of others.

  However, Mr. John L. Cable, of Ohio, a member of the committee 
concurring in the conclusions of the committee, files additional views 
on this point in which he adds:

  Neither is contestee without fault. His counsel prepared and entered 
into a stipulation with contestant's attorney that the rules of 
Congress and the laws of the United States should not be binding and 
that--
``either party may have more than the period of time allotted and fixed 
therein within which to present his respective case in this proceeding, 
and both sides waive specifically any right to object that they may 
have under the law with respect to the time so fixed.''
  Contestee's counsel now raises the issue of delay. In his brief he 
claims:
  ``The contestant has thoughout deliberately ignored the limitations 
and abused the privileges imposed and granted by the act.''
  He also contends:
  ``The contest should be dismissed because the contestant, without 
consent of the House or its proper committee, did not take and state 
his proof within the time limited by act of Congress.''
  He seeks to profit by a violation of his own agreement; to win his 
client's cause by the disregard of the laws of Congress, of which he 
also is guilty; to benefit from a situation he aided and assisted in 
creating; to use the violation of the law as a weapon of offense and 
defense--as a shield and a sword.
  This action on the part of contestee's attorney is neither ethical 
nor professional. It is particularly a subject of condemnation. 
Contestee should not have permitted such a claim to be presented in his 
brief.

  A few days before the case came up for hearing counsel for contestant 
requested that subpoenas issue for the production of 82 ballots in 
dispute. The committee gave as its reasons for denying this request:

  The record is bare of any evidence or proof to sustain the general 
allegations of intimidation, fraud, or of other misconduct alleged in 
the notice of contest.
                                                             Sec. 164
  Contestant's counsel by failing to stress at all these contentions in 
the argument conceded that such allegations could not be sustained.
  The record fails to reveal any real ground for contest other than the 
hope that a recount of the ballot might overturn the narrow majority of 
168 by which the election of the contestee had been certified by the 
secretary of state.
  But there is nothing in the record at all persuasive that a recount 
would change the result. The ballots said to be in dispute involve 
merely considerations of the kind of lead pencil used by voters, hair 
lines seen on the face of the ballots, and alleged erasures. There is 
no question involved of fraud or of other serious irregularities.

  In the further support of its refusal to subpoena ballots for recount 
the committee asserts that the House and its committees are not boards 
of recount and quotes with approval the following statement of counsel 
in the case of Amsorge v. Weller:

  It has been said again and again by the House, by the courts, by 
every tribunal that has this duty of passing upon contested elections, 
that the returns which are made by the inspectors, regularly appointed 
by the laws of the State where the election is held, are presumed to be 
correct until they are impeached by proof of irregularity and fraud, 
and that the House will not erect itself, nor will it erect its 
committees as mere boards of recount. It is conceived that when the 
statutes of the State have set up these bipartisan boards and made due 
and proper provision for their selection, that it is, a matter of 
public policy, wise and right that their conclusions shall be accepted 
by the parties to the election, by the public, and by any board charged 
with the duty of passing on the result, until such time as such 
irregularities and frauds are proved as to raise a fair presumption 
that their duties were not honestly performed.

  The principal issue, however, on which the committee decides the 
case, is the failure of contestant to complete and file testimony 
within the time required by law and contemplated by the rules of 
procedure approved by the rules of procedure approved by the election 
committees and by clause 58 of Rule X1 of the rules of the House. The 
committee say:

  The controlling factors, however, in our minds in reaching the 
conclusion in this case, were the imperative necessity of safeguarding 
the printed rules unanimously approved by the three election 
committees, a special rule of the House recently adopted, the plain and 
explicit provisions of a law of Congress, and a long and unbroken line 
of House precedents.
  The rules of the election committees were carefully prepared and 
unanimously adopted by the three election committees.
  They were prepared specifically to expedite the determination of 
election case. The contestant's attorney admitted that he had not 
brought himself within these rules.

  Citing clause 58 of Rule XI, the committee quote a statement in 
debate on the adoption of the clause by the chairman of the then 
Committee on Rules: \1\

  Everyone is opposed to allowing contested election cases to run along 
until the last day of the session, as is often done, and we can see no 
good reason for doing so. * * * But with that rule enforced, we thought 
we could hurry them up and get better action from the election 
committees than we have had in the past.

  Citing section 107 of the Revised Statutes, the committee quote 
statements in debate on the enactment of the law by the then chairman 
of the Committee on Elections: \2\
-----------------------------------------------------------------------
  \1\ First session Sixty-eighth Congress, Record, p. 950.
  \2\ Second session Thirty-first Congress, Globe, p. 108.
Sec. 165
  I have had during this Congress considerable experience of the 
difficulty under which the House and the Committee on Elections labor 
in determining upon those cases of contested elections which are 
brought before it. I have determined during the last session of 
Congress that I would endeavor to promote such a bill as would remove 
most of the evils and enable the House to dispose of those cases 
without such great consumption of its time but without suffering the 
evils under which it has labored in past years.
  If this bill is approved, the result will be that instead of several 
months' delay, as has been the case heretofore, the testimony will be 
in the hands of the printer the very first day of the session, and the 
decision of the House will be made before the 1st day of January in 
every session.

  And by another member of the Elections Committee: \1\

  This thing of contesting the right to a sitting Member on this floor 
has become the greatest of all humbugs in this age of humbugs. A -- 
comes here and claim that he is entitled to the seat of the person in 
it under proper authority of the State. The consequences is that during 
a long nine-mouth session the Member retains his seat, but at the close 
of the session the House decides that he is not entitled to it and is 
turned out after having exercised the conventions of an office nine 
months to which he had not been entitled, and although the contestant 
and the sitting Member are paid full wages of Members of Congress.

  As to failure of contestant to comply with express provisions of the 
statute and the rules of the committee and of the House, the committee 
conclude:

  The record reveals the fact that the contestant had permitted the 
contest to drag along up to within a few months of the termination of 
the Congress to which he claimed election; that the recount, even if 
successful for the contestant, would still further reduce the value of 
it for him to the nominal distinction of having been declared elected, 
but of course he would get the substantial emoluments of salary and 
clerk hire for two years.
  The precedents of the House have recently been very specific and 
direct in holding that parties guilty of laches would have no standing 
before the House unless sufficient cause was disclosed for delay.
  These precedents are well fortified by a long line of decisions in 
election cases.

  The committee therefore recommended the adoption of the following 
resolution:

  Resolved, That the Committee on Elections No. 2 shall be, and is 
hereby, discharged from further consideration of the contested-election 
case of Henry Frank v. Fiorello H. LaGuardia from the twentieth 
congressional district of New York.

  165. The Senate election case of Peddy v. Mayfield in the Sixty-
eighth Congress.
  A memorial, having been filed charging conspiracy and excessive 
expenditure of money in the election of a Senator, the Senate by 
resolution authorized an investigation.
  Discrepancies in returns disclosed by a recount and reported by the 
committee as insufficient to change the result of the election were not 
further examined by the Senate.
  Failure to comply with statutory requirements in the signing, 
numbering, and stamping of ballots was disregarded by the Senate.
  The Senate recognizes the power of the party or the State to provide 
regulations governing party primaries.
-----------------------------------------------------------------------
  \1\ Second session Thirty-first Congress, Globe, p. 109.
                                                             Sec. 165
  Discussion of litigation in State courts to place names of candidates 
on the ballot.
  Excessive and unlawful amounts of money spent without the knowledge 
or consent of the candidate do not warrant the sustaining of a contest.
  In the Sixty-eighth Congress \1\ the Senate considered the case of 
George E. B. Peddy v. Earle B. Mayfield, of Texas.
  The credentials of Mr. Mayfield as a Senator from the State of Texas 
were presented December 3, 1923, at the beginning of the first session 
of the Sixty-seventh Congress, and being in due form he took his seat 
in the Senate.
  Subsequently: \2\

  George E. B. Peddy (contestant) filed with the Senate February 22, 
1923, a petition contesting the election of Earle B. Mayfield 
(contestee) as Senator from Texas in the general election of November 
7, 1922, and a protest both against the election and the qualification 
of the contestee. A first and second supplemental petition were filed 
by the contestant and an answer was filed by the contestee.
  The charges alleged by the contestant were:

  1. That illegal votes were counted for Mr. Mayfield and that legal 
votes were not counted for contestant.
  2. That undue advantage and illegal discrimination in favor of 
contestee was such as to invalidate his election.
  3. That the primary elections, both the first primary election and 
the second, or run-off primary election were illegally controlled by 
secret influences, by fraud, by excessive use of money, and by 
lawlessness in the interests of contestee and against the rights of 
contestant.
  4. That there was a general conspiracy between the Knights of the Ku-
Klux Elan and the contestee of a character and result that invalidated 
the election of contestee.
  5. That contestee was disqualified for membership in the Senate of 
the United States largely because of the alleged ``illegal practices 
that were directly or indirectly connected with his election.''
  6. Contestant asked for a recount and recanvass of the votes cast at 
the general election and claimed in his first supplemental petition 
that he, contestant, was entitled to the office.

  The memorial with accompanying papers was referred to the Committee 
on Privileges and Elections. After consideration the committee reported 
a resolution authorizing an investigation by the Committee on 
Privileges and Elections which was Weed to by the Senate on January 3, 
1924.\3\
  Under authority conferred by the resolution:

  The ballots were gathered in the State of Texas through the office of 
the Sergeant at Arms and were transmitted in sealed pouches by the Post 
Office Department under lock and key, with every safeguard against 
possible tampering. The recount, conducted in the Senate Office 
Building, was begun on February 18, 1924, and was completed on April 8, 
1924. The official return from the State of Texas as taken from the 
county clerks' records shows the following result:

  Mayfield                                                 266,307
  Peddy                                                    132,529
                                                        ----------
      Total                                                398,836

  The total number of votes which were brought to Washington were 
$67,513, of which 28,319 were no votes. The result of the recount of 
these ballots showed that--
-----------------------------------------------------------------------
  \1\ Second session Sixty-eighth Congress, Senate Report No. 973.
  \2\ First session Sixty-eighth Congress, Record, p. 317.
  \3\ Record, p. 488.
Sec. 165
  Mayfield received                                        221,596
  Peddy received                                           117,599

  The inspection of the ballots also disclosed--

many irregularities and discrepancies and clear violations of law in 
connection with the casting of the ballots, as, for example, the laws 
of Texas provide that the ballots shall be signed by the judge of 
election.
    30,209 Mayfield ballots were not thus signed.
    14,609 Peddy ballots were not thus signed.
  The law provides that the ballots shall be numbered.
    1,723 Mayfield ballots were not numbered.
    1,021 Peddy ballots were not numbered.
  The law provides that the ballots that are cast shall be stamped 
``voted.''
    187,387 Mayfield ballots were not thus marked.
    92,192 Peddy ballots were not thus marked.

  As to the effect upon the validity of the election of these 
discrepancies in the count and the failure to comply with the statutory 
requirement specified, the committee in its report submitted January 3, 
1924,\1\ hold:

  These are illustrations of the irregularities, discrepancies, and 
violations of law, but no one of them, nor all of them together, in the 
judgment of your committee, either did or ought to change the result.

  As to the power of a party or a State to provide regulations 
governing party primaries within the State, the committee conclude:

  The contestant complained of the law and practice in Texas which 
prevented any member of a party from voting at a primary election who 
had not voted, if he voted at all, for the regular party ticket at the 
last preceding general election.
  It was claimed by the contestant that except for this rule Mayfield 
would not have been nominated at the primary. Similar regulations are 
in force in other States, and your committee has no doubt as to the 
power of a party or of a State to make such regulations if they see fit 
so to do.

  The committee further determine:

  The contestant alleged that there was a general conspiracy between 
the Knights of the KuKlux Klan and the contestee in order to bring 
about the election of the contestee and that pursuant to this 
conspiracy unlawful sums of money were spent in favor of contestee and 
that the Knights of the Ku-Klux Klan, a corporation, were prohibited by 
law from contributing to or interfering in their corporate capacity 
with elections, and also that intimidation was resorted to in the 
interest of the contestee.
  The evidence does not, in the opinion of your committee, show that 
excessive and unlawful amounts of money were spent, and certainly not 
with the knowledge or consent of Senator Mayfield, nor do they find 
from the evidence that there was any such lawlessness or conspiracy in 
connection with the Ku-Klux Klan or otherwise as would in their 
judgment warrant the sustaining of the contest.

  In conclusion, the committee say:

  Undoubtedly there were, particularly in the primary election, and in 
the general election as well, acts of omission and commission in 
violation of express statutes, and some of them doubtless
-----------------------------------------------------------------------
  \1\ Record, p. 489.
                                                             Sec. 165
were intended to unlawfully produce a desired result in the election, 
but the evidence from the beginning to the end of it does not show 
either a knowledge or a consent of Senator Mayfield in these matters, 
nor are they of a character or extent which in the judgment of your 
committee warrant either the sustaining of the contest or the protest 
against the seating of Senator Mayfield.

  The report also recounts at length the course of litigation in the 
State courts over the placing of names of candidates on the ballot.
  The committee therefore:

unanimously recommend that the contest in this case be dismissed and 
the protests against the seating of Senator Mayfield be overruled.
  The Senate, without debate or division, agreed \1\ to the report.
-----------------------------------------------------------------------
  \1\ Second session Sixty-eighth Congress, Record, p. 2929.