[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8. Elections and Election Campaigns]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 827-833]
CHAPTER 8
Elections and Election Campaigns
[[Page 827]]
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Commentary and editing by Peter D. Robinson, J.D.
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A. Apportionment; Voting Districts
Sec. 1. In General; Functions of Congress and the States
Sec. 2. Census and Apportionment; Numerical Allocation of
Representatives
Sec. 3. Districting Requirements; Duty of States
Sec. 4. Failure of States to Redistrict
B. Time, Place, and Regulation of Elections
Sec. 5. In General; Federal and State Power
Sec. 6. Elector Qualifications; Registration
Sec. 7. Time and Place; Procedure
Sec. 8. Ballots; Recounts
Sec. 9. Elections to Fill Vacancies
C. Campaign Practices
Sec. 10. Regulation and Enforcement
Sec. 11. Campaign Practices and Contested Elections
Sec. 12. Expulsion, Exclusion, and Censure
Sec. 13. Investigations by Standing Committees
Sec. 14. Investigations by Select Committees
D. Certificates of Election
Sec. 15. In General; Form
Sec. 16. Grounds for Challenge
Sec. 17. Procedure in Determining Validity; Effect
[[Page 828]]
DESCHLER'S PRECEDENTS
INDEX TO PRECEDENTS
Apportionment
directory and not mandatory following census, Sec. 1.2
legislation considered in Committee of the Whole, Sec. 2.5
method of, by equal proportions, Sec. 2.6
method of, by major fractions, Sec. 2.6
motion to consider legislation not privileged, Sec. 2.4
reduction of seats for denial of voting rights, Sec. Sec. 2.7, 2.8
Ballots
impoundment of, by Congress, Sec. Sec. 8.9, 8.10
validity of, Sec. 8.11
Campaign practices
acts and regulations
Clerk's role under Election Campaign Act, Sec. Sec. 10.6, 10.7
committee jurisdiction, Sec. Sec. 10.2-10.5
Committee on Standards of Official Conduct and its
jurisdiction, Sec. 10.5
contested elections
Corrupt Practices Act affecting validity of elections,
Sec. Sec. 11.1 et seq.
expenditures, reports and limitations, Sec. Sec. 11.1 et seq.
disciplinary action
censure for corrupt practices, Sec. Sec. 12.3, 12.4
exclusion for corrupt practices, Sec. 12.2
expulsion for corrupt practices, Sec. 12.1
investigations by select committees
former select committee on standards and conduct, Sec. 14.9
select committee to investigate campaign expenditures, creation
of, Sec. Sec. 14.1-14.3
Senate select committees on campaign practices,
Sec. Sec. 14.10-14.12
use of select committee findings to judge elections,
Sec. Sec. 14.4-14.8
investigations by standing committees
Committee on Elections, former, Sec. 13.3
Committee on House Administration, Sec. Sec. 13.2, 13.4, 13.5
Committee on Standards of Official Conduct, Sec. 13.6
Senate investigation into election of House Member, Sec. 13.7
Census
additional statistics taken, Sec. 2.1
Congress' authority over, Sec. Sec. 1.1, 2.1
Indians included in, Sec. Sec. 1.1, 2.3
submission of results by President, Sec. 2.2
Certificates of election
Delegates and Resident Commissioner, Sec. Sec. 15.6, 15.7
issuance of by state executive, Sec. Sec. 15.1 15.4
oath administration where certificate delayed, Sec. 15.5
return of to state by Senate, Sec. 9.14
Senate practice, Sec. Sec. 15.8, 15.9
Certificates of election, challenges to
impeachment by ``citizens' certificate,'' Sec. 16.5
impeachment by collateral matters, Sec. Sec. 16.6, 16.7
impeachment by court order, Sec. Sec. 16.3, 16.4
impeachment by other papers and evidence, Sec. 16.2
irregular form, Sec. 16.1
Certificates of election, validity of
jurisdiction of House, Sec. Sec. 17.1, 17.2
nullification of certificate, Sec. Sec. 17.3, 17.4
[[Page 829]]
reliance on state communications absent certificate, Sec. 17.5
Clerk of House
authorized to investigate violations, Sec. 10.10
authorized to obtain counsel, Sec. 10.8
ex officio member of Federal Election Commission, Sec. 10.11
role under election campaign statutes Sec. Sec. 10.6-10.11
Committee jurisdiction (see also Campaign practices)
Committee on House Administration, validity of elections,
Sec. Sec. 5.2, 6.3, 8.5
Committee on Judiciary, congressional districting, Sec. 3.2
Committee on Judiciary, constitutional amendments, Sec. 6.8
committees on elections, Sec. 8.11
former census committee, Sec. 2.6
select committees on campaign expenditures, election
irregularities, Sec. 8.3
Committee of the Whole
consideration of redistricting and apportionment legislation in,
Sec. Sec. 2.5, 3.4
Congressional districting
absence of judicial standards, Sec. 3.2
congressional power over, Sec. Sec. 1.3, 3.1-3.3
consideration of, in Committee of the Whole, Sec. Sec. 3.4
consideration under special rules, Sec. 3.5
former federal standards, Sec. 3.1
jurisdiction of Committee on Judiciary, Sec. 3.2
single-member districts, Sec. 3.3
unequal representation in primary, Sec. 3.7
Constitution
article I, Sec. 2, clause 1 (elector qualifications), Sec. 6.7
article I, Sec. 2, clause 3 (census), Sec. Sec. 2.1-2.3
article I, Sec. 2, clause 4 (elections to fill vacancies), Sec. 9.4
article I, Sec. 4, clause 1 (congressional state authority over
elections), Sec. Sec. 1.3. 3.1, 3.3, 7.1, 9.7
article I, Sec. 5, clause 1 (House judge of elections and returns),
Sec. Sec. 5.2, 5.4, 17.1
article II, Sec. 2, clause 2 (appointments clause), Sec. 10.11
24th amendment (poll tax prohibited), Sec. 6.9
Federal Election Commission
composition, Sec. 10.11
regulations, congressional disapproval of, Sec. 10.12
Illegal control of election machinery, Sec. 7.8
Judiciary
power of courts over congressional elections, Sec. Sec. 5.1-5.3,
7.2, 8.1 8.4, 9.8, 15.2, 15.3, 16.3, 16.4
requiring congressional districting, Sec. 3.2
Poll officials, conduct of, Sec. Sec. 7.6, 8.11
Poll tax requirements, Sec. Sec. 6.6-6.9
President
transmits census results and apportionment formula to Congress,
Sec. Sec. 1.1, 2.2
Primary elections, Sec. Sec. 7.2-7.5
Recounts
congressional deference to state recount law, Sec. Sec. 8.2-8.4
congressional power over state recount, Sec. Sec. 8.6, 8.7
congressional recount, Sec. 8.5
power of states, Sec. 8.1
procurement of ballots by Congress, Sec. Sec. 8.9. 8.10
[[Page 830]]
Resignations effective on unspecified future date. Sec. Sec. 9.3, 9.4
Senate
amendment abolishing poll tax, Sec. 6.9
appointees to fill vacancies, Sec. Sec. 9.14-9.16
certificates of election, Sec. Sec. 15.8, 17.6
disciplinary action for corrupt practices, Sec. Sec. 12.1-12.3
exclusion proceedings based on conspiracy to prevent voter
participation, Sec. 6.5
expulsion proceedings based on illegal control of election
procedure, Sec. 7.8
impoundment of ballot boxes, Sec. 8.10
investigations into campaign practices, Sec. Sec. 14.10-14.12
Speaker
appointments to former Federal Election Commission, Sec. 10.11
declined to administer oath, Sec. 9.8
granted authority to notify state of vacancy in House, Sec. 9.2
notified by Clerk of receipt of certificates of election to fill
vacancy, Sec. 9.11
submits constitutional questions to House, Sec. 1.2
submits validity of certificates to House, Sec. 17.1
States
application of state law over special elections, Sec. Sec. 9.7, 9.8
campaign practices acts, effect of, on validity of elections,
Sec. 11.4
denial of voting rights by alleged action of, Sec. Sec. 5.6, 5.7
duty to call elections to fill vacancies, Sec. Sec. 9.4-9.6
informal communications to House where certificate delayed,
Sec. 17.5
issuance of certificate of election, Sec. Sec. 15.1-15.4
jurisdiction over election procedure in general, Sec. Sec. 5.1-5.3
laws regulating primaries, Sec. Sec. 7.2-7.4
notification and declaration of vacancies, Sec. Sec. 9.1-9.6
poll officials, conduct of, Sec. Sec. 7.6, 8.11
recount by, Sec. Sec. 8.1, 8.2
residency requirements for electors, Sec. Sec. 6.10, 6.11
voter registration laws, Sec. Sec. 6.1, 6.2
voting facilities, Sec. 7.7
Territories and seat of government
certificates of election for Delegates and Resident Commissioner,
Sec. Sec. 15.6, 15.7
territory, power over elections, Sec. 5.5
Time and place of election
state authority to prescribe, Sec. 7.1
Vacancies, elections to fill
certificate of election, Sec. Sec. 9.11-9.13
congressional and state power over special elections,
Sec. Sec. 9.7, 9.8
reelection of Representative to succeed himself, Sec. 9.10
resignations effective on date of special election, Sec. Sec. 9.3,
9.4
Senate, appointees to fill vacancies in, Sec. Sec. 9.14-9.16, 15.9
state duty to call special election, Sec. Sec. 9.4-9.6
Vacancies, notification of, Sec. Sec. 9.1, 9.2
Vacancies, proposals to fill by appointment, Sec. 9.9
Voter registration and qualifications
challenges to seats for denial of voting rights, Sec. Sec. 6.3-6.5
federal protection of voting rights, Sec. 6.12
poll tax requirements, Sec. Sec. 6.6-6.9
residency requirements, Sec. Sec. 6.10, 6.11
state action denying voting rights, Sec. Sec. 5.6, 5.7
violation of state registration laws, Sec. Sec. 6.1, 6.2
[[Page 831]]
Voting facilities, Sec. 7.7
Voting rights legislation, Sec. Sec. 2.8, 5.3, 6.12
[[Page 833]]
Elections and Election Campaigns
CHAPTER 8
Elections and Election Campaigns
A. APPORTIONMENT; VOTING DISTRICTS
Sec. 1. In General; Functions of Congress and the States
The compromise reached at the original Constitutional Convention
and approved by the ratifying conventions in the 18th century provided
for one House of the national legislature to equally represent the
states and for the other House to equally represent the people of the
several states.(1) While the drafters of the Constitution
provided for a periodic enumeration of the national population to be
used in computing representation in the House of
Representatives,(2) and provided for both state and federal
regulation over elections,(3) the specific mechanism by
which Representatives would be allocated to states and by which they
would be elected by the people were not described in the Constitution.
The procedures for determining the size of the House, allocating seats
to states, and equally distributing the right to vote for
Representatives have gained form through congressional and state
practice, federal statute, and judicial interpretations of the
Constitution.(4)
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1. See Wesberry v Sanders, 376 U.S. 1, 14 (1964) for a discussion of
the ``Great Compromise.'' The composition of the House is
dictated by U.S. Const. art. I, Sec. 2, clause 1, and the
composition of the Senate is dictated by U.S. Const., 17th
amendment. For a general discussion of the intention of the
drafters of the Constitution as to House apportionment and
districting, see Hacker, Congressional Districting, Brookings
Institution (Washington, rev. ed., 1964).
2. U.S. Const. art. I, Sec. 2, clause 3.
3. U.S. Const. art. I, Sec. 4, clause 1.
4. Collateral matters relating to districts are not described in this
chapter. For example, the allowances the Representative may use
within his district and his power to send franked material
outside his district are discussed in Ch. 7, supra.
For coverage of elections and election procedures prior to
1936, see 1 Hinds' Precedents Sec. Sec. 756 et seq. and 6
Cannon's Precedents Sec. Sec. 121 et seq.
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Due to the recent proliferation of judicial decisions and
collateral materials on the general subject of equality of political
representation, important terms relating to
[[Page 834]]
the subject have become ill-defined and interchangeable. Therefore,
such terms as ``apportionment,'' ``reapportionment,'' ``census,''
``district,'' and ``districting,'' are defined and used herein in their
strict constitutional meaning.
The taking of the census is the first step in the process of
effecting equal representation in the House of
Representatives.(5) The U.S. Constitution (art. I, Sec. 2,
clause 3) provided for the allocation of Representatives among the
states in accordance with an enumeration to be made of the national
population every 10 years. The 14th amendment altered that clause in
requiring the enumeration of all persons including former slaves, and
in requiring reduction in a state's allocation of seats for denial of
voting rights.(6) Congress has sole authority under the
Constitution to direct the manner in which the enumeration or census
shall be taken and compiled.(7) Although the taking of the
census and its uses have broadened in scope, its primary purpose
remains to enumerate the people as the basis for the equal allocation
of Representatives in the House.
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5. Taking the census, see Sec. 2, infra.
6. See Sec. 2, infra.
7. U.S. Const. art. I, Sec. 2, clause 3 states that the enumeration
shall be made in such manner as Congress shall direct.
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Apportionment is the method by which seats in the House are
distributed among the states in accordance with the results of the
decennial census.(8) The term has been used interchangeably
in recent years to refer to the districting within a state for the
election of the allotted number of Representatives.(9) The
terms apportionment and reapportionment have also been used to refer to
the allocation of state legislators and other nonfederal officials
among state subdivisions; that area of the law is not germane to this
discussion and must not be confused with apportionment and districting
for the U.S. House of Representatives.
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8. The 14th amendment of the U.S. Constitution states:
``Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole
number of persons in each State, excluding Indians not taxed.''
9. References in U.S. constitutional provisions relating to the House
of Representatives and election of Members thereof, and to the
enumeration of the population of the various states, have to do
with apportionment of Representatives among the states, and not
within them. Meeks v Avery, 251 F Supp 245 (D. Kan. 1966).
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The function of apportioning the seats in the House is vested exclu
[[Page 835]]
sively in Congress,(10) and neither states nor courts may
direct greater or lesser representation than that allocated by an act
of Congress.(11) Before seats in the House can be
apportioned, the number of seats in the House must be set at a fixed
number; this determination is within the province of Congress and has
been directed by federal statute.(12)
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10. Although the power of Congress to allocate seats to the states is
not expressly stated in the Constitution, the power is
logically implied from the congressional power to direct the
taking of the census. Prigg v Pennsylvania, 41 U.S. (16 Peters)
619 (1842).
11. For states' claims to greater representation, see Sec. 2, infra. A
court cannot reduce the number of Representatives allotted to a
state by Congress pursuant to statute. Saunders v Wilkins, 152
F2d 235 (4th Cir. 1945), cert. denied, 328 U.S. 870, rehearing
denied, 329 U.S. 825 (1946).
12. ``The power to district a state, in accordance with the Federal
apportionment, is by this section [art. I, Sec. 4, clause 1]
conferred upon the state, subject to the control of Congress,
whereas the power to fix or alter the number of Members of the
House of Representatives of the United States is vested
exclusively in the Federal Government . . . there is no doubt
that a state cannot exercise the power to fix the size of the
Federal House of Representatives, whether through its ordinary
legislature, or its constitutional convention, or in any other
way.'' H. Rept. No. 51, Committee on Elections, 41st Cong. 2d
Sess. (cited at 1 Hinds' Precedents Sec. 318).
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Under the Constitution, each state is entitled to at least one
Representative.(13) Since the first Congress, a specific
mathematical method has been used in the allocation of the remaining
seats in the House to the states.(4) The first such method,
devised by Thomas Jefferson, called for a predetermined ratio of
inhabitants per Representative and a rejection of all remaining
fractions. Under the second method, beginning about 1840, major
fractions were accounted for by the assignment of an additional
Representative.
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13. U.S. Const. art. I, Sec. 2, clause 3.
14. See The Decennial Population Census and Congressional
Apportionment, H. Rept. No. 91-1314, 91st Cong. 2d Sess.,
Subcommittee on Census and Statistics, Committee on Post Office
and Civil Service. See also Huntington, Methods of
Apportionment in Congress, Government Printing Office
(Washington, 1940).
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The method of major fractions in use until 1940 employed a
mathematical formula and a list of ``priority values,'' based on the
size of the population of each state, to allocate seats in the House.
The priority list is also the principal feature of the present method
of ``equal proportions,'' which uses a different mathe
[[Page 836]]
matical formula to produce more evenly distributed apportionment than
the major fractions method. (15)
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15. For a technical comparison between the methods of major fractions
and equal proportions in relation to apportionment, see Shaw v
Adkins, 202 Ark. 856, 153 S.W.2d 415 (1941). The court
discussed these and other contemporary formulas, such as the
harmonic mean, smallest divisors, and greatest divisors, in
order to choose the best method of apportioning state
legislators. Federal experience was extensively discussed.
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Apportionment under the ``equal proportions'' method is complex.
The problem is to allocate a finite number of seats (385, after each
state has received one) among 50 states of widely varying population,
where no seat can be shared between two states, and where the principal
aim is to allot each seat to as nearly as practicable an equal number
of constituents. The allotment is accomplished by dividing the
population of each state by the geometric mean of successive numbers of
Representatives (n x [n-1] where ``n'' is the number of the seat). For
example, the population of state A is first divided by 2 x (2-1) to
establish its priority value for a second seat, then by 3 x (3-1) to
establish its priority value for a third seat, and so on. Priority
values are computed for all the states, for successive numbers of
seats, and then all the values are listed in descending order. If state
A has a very large population, its claims for a second, third, and more
seats will be listed ahead of the claim of state B for a second seat,
if state B is sparsely populated. Thus the 385 seats are allotted to
the states whose priority values are the first 385 on the priority
list.(16)
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16. For a comprehensive discussion and examples of apportionment under
the method of equal proportions, see Guide to Congress, p. 509,
Congressional Quarterly Inc. (Wash., 1971).
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If only one seat is allocated to a state under the method of equal
proportions, the Representative is elected by and represents the total
population of the state. If more than one Representative is allocated,
the state must be divided into subdivisions which elect
Representatives. Such subdivisions are called congressional districts,
the formation of which is primarily a matter for the state
government.(17)
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17. Congress ``apportions'' Representatives among the states, while the
states ``district'' by actually drawing congressional district
lines. ``Apportionment'' in its technical sense refers solely
to the process of allocating legislators among political
subdivisions, while ``districting'' entails the actual drafting
of district lines. Kilgarlin v Martin, 252 F Supp 404 (D. Tex.
1966), reversed on other grounds, 386 U.S. 120, rehearing
denied, 386 U.S. 999 (1967).
Congressional districting is a legislative matter for the
several states. Smiley v Holm, 285 U.S. 355 (1932); Carroll v
Becker, 285 U.S. 380 (1932); Koenig v Flynn, 285 U.S. 375
(1932).
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[[Page 837]]
The function of the state in dividing itself into districts has
been included within the label of ``reapportionment.'' The decisions of
the U.S. Supreme Court and of the federal courts since 1964 which have
dealt with congressional representation and which have been termed
``reapportionment'' cases are in actuality decisions on the designation
of congressional districts within a state and not on the apportionment
of Representatives to states by Congress.(18)
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18. For a discussion of those decisions, see Sec. 3, infra (districting
requirements) and Sec. 4, infra (failure of states to
redistrict).
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Another term which the reader may encounter in this chapter is
``at-large'' elections.(19) An at-large Representative was
elected by and represented all the people of the state rather than a
specific subdivision thereof. At-large elections and multi-member
districts are now prohibited by federal statute, (20)
reflecting the prevailing view that such elections were not
contemplated by the drafters of the Constitution. (1)
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19. See 2 USC Sec. 2a(c) (superseded by 2 USC Sec. 2c).
20. See Sec. 3, infra.
1. See Norton v Campbell, 359 F2d 608 (10th Cir.), cert. denied, 385
U.S. 839 (1966). See also Hacker, Congressional Districting,
Brookings Institution (Washington, rev. ed., 1964).
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Reapportionment and districting issues do not arise in relation to
the elections of Delegates and Resident Commissioners, since the
controlling constitutional provisions relate solely to Representatives
of the states. Delegates and Resident Commissioners are created by
statute, and each territory has been entitled to only one Delegate,
elected by all the people of the territory.(2)
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2. For the nature of the office of Delegate and Resident Commissioner,
see Ch. 7, supra.
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Collateral References
The Decennial Population Census and Congressional Apportionment, H.
Rept. No. 91-1314, 91st Cong. 2d Sess., Subcommittee on Census and
Statistics, Committee on Post Office and Civil Service.
Hacker, Congressional Districting, Brookings Institution (Wash., rev.
ed., 1964).
Keefe and Ogul, The American Legislative Process: Congress and the
States, Prentice-Hall (1964).
[[Page 838]]
Congressional Power Over Taking the Census
Sec. 1.1 The manner of taking the census is for Congress to decide.
On Jan. 8, 1941, the results of the 1940 census were laid before
the House, accompanied by a Presidential message stating that all
Indians had been included in the enumeration since they had become
subject to federal taxation.(3) The President's message read
in part as follows:
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3. 87 Cong. Rec. 70, 77th Cong. 1st Sess. The 14th amendment excludes
from the enumeration all Indians not taxed.
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The effect of this [enumeration of Indians] upon apportionment
of Representatives, however, appears to be for determination by the
Congress, as concluded in the Attorney General's opinion of
November 28, 1940, to the Secretary of Commerce, a copy of which is
annexed hereto.
No objection was made to the inclusion of Indians within the
enumeration.
The opinion of the Attorney General referred to by the President
stated that ``what construction the Congress will now give to the
phrase `Indians not taxed' is a question for it to decide, and action
taken by it with respect thereto will be final, subject only to review
by the courts in proper cases brought before them.''
Pursuant to Congress' sub silentio ratification of the enumeration,
Indians have been counted in the census since 1940.
Congressional Power to Allocate House Seats
Sec. 1.2 The House has determined that the constitutional provision
requiring Congress to reapportion seats in the House to the states
after the taking of the census is directory and not
mandatory.(4)
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4. For a prior elections committee report reaching the same
conclusion, see 6 Cannon's Precedents Sec. 54.
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On Apr. 8, 1926, the House determined by a yea and nay vote a
question submitted to the House by Speaker Nicholas Longworth, of Ohio,
pertaining to the constitutional privilege of a motion to consider
reapportionment legislation.(5) Preceding the vote on the
question, there ensued a lengthy debate in the House on the nature of
the requirement of the Constitution that Congress order a
reapportionment of seats in the House to the states following each
decennial census.(6) By finding that the motion was not
constitu
[[Page 839]]
tionally privileged, the House overruled prior precedents holding to
the contrary and determined that the House could not be forced to
consider reapportionment legislation.(7)
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5. 67 Cong. Rec. 7148, 7149, 69th Cong. 1st Sess.
6. Id. at pp. 7138-48. See Sec. 2.4, infra, for more detailed
discussion of this precedent.
7. Congress thereafter provided for an automatic system of
reapportionment. See the act of June 18, 1929, Ch. 28, Sec. 22,
46 Stat. 26, as amended, 2 USC Sec. 2a.
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Congressional Power Districting
Sec. 1.3 Congress has constitutional authority to establish
congressional districting requirements for the states and to compel
compliance therewith.
On Jan. 9, 1951, the results of the 1950 census were transmitted to
Congress, accompanied by a Presidential message recommending the
enactment by Congress of congressional districting standards to correct
wide variances in the size and composition of districts.(8)
The message cited Congress' power to preempt state regulation over the
times, places, and manner of congressional elections in order to
establish standards for congressional districting and to compel state
compliance therewith.(9)
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8. 98 Cong. Rec. 114, 82d Cong. 1st Sess. Prior to 1929, Congress had
enacted statutes regulating the size and composition of
congressional districts (see Sec. 3.3, infra).
9. Id. Districting legislation was passed in later years (see
Sec. 3.3, infra).
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CHAPTER 8
Elections and Election Campaigns
A. APPORTIONMENT; VOTING DISTRICTS
Sec. 2. Census and Apportionment; Numerical Allocation of
Representatives
Article I, section 2, clause 3 of the U.S. Constitution requires
that an enumeration of the people be made every 10 years in order that
seats in the House may be apportioned among the states according to the
number of persons counted in each state. As originally adopted, this
provision made certain distinctions between free persons, slaves, and
``Indians not taxed.'' (10) The 14th amendment, ratified
after the emancipation of slaves,(11) altered that provision
[[Page 840]]
by mandating the counting of the ``whole number'' of persons in each
state and by directing that a denial of voting rights proportionately
reduces a state's basis of representation.
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10. The original constitutional provision provided that three-fifths of
the persons not freed be counted to compute a state's basis of
representation. Enumeration was excluded, both in that
provision and in the 14th amendment, for ``Indians not taxed.''
Indians are now included in the enumeration since they are
subject to federal taxation (see Sec. 2.3, infra).
11. The Emancipation Proclamation was issued on Jan. 1, 1863, and,
although of no binding force, was sanctioned by the
ratification of the 13th amendment in December of 1865. The
14th amendment was ratified in July of 1868.
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Congressional apportionment legislation adopted pursuant to these
constitutional provisions allocates a certain number of seats in the
House to each state, and also fixes the maximum numerical membership of
the House.(12)
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12. For a historical analysis of the mathematical methods which have
been used to apportion seats in the House based on census
results, see Sec. 1, supra.
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The census has been taken decennially since 1790,(13)
and has been administered since 1889 by the Bureau of the Census, a
subdivision of the Department of Commerce.(14) The data
gathered through the census has been broadened to include information
other than population statistics,(15) since reports prepared
by the Bureau of the Census aid the Congress in the informed
performance of its legislative function.(16)
[[Page 841]]
Proposals related to the census fall under the jurisdiction of the
Committee on Post Office and Civil Service.(17)
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13. Under 41 USC Sec. 141, as amended by Pub. L. No. 94-521, 90 Stat.
2459, a mid-decade census is to be taken in 1985 and every 10
years thereafter, but information gained therein may not be
used for apportionment or congressional districting.
14. For the establishment power, and duties of the Bureau of the Census
and the Director of the Census, see 13 USCA Sec. Sec. 1 et seq.
For the scope of the census director's authority and the
constitutionality of Congress' delegation of power to him, see
the annotations to title 13, USCA. For the reasonableness of
criteria used by the Census Bureau in computing the population
of respective states, see Borough of Bethel Park v Stans, 449
F2d 575 (3d Cir. 1971).
15. The Constitution does not prohibit the gathering of statistics
other than those affecting population, United States v
Moriarty, 106 F 886 (Cir. Ct. S.D. N.Y. 1901), and the fact
that many personal questions may be asked in order to provide
statistical reports on housing, labor, health, and welfare
matters (see 13 USCA Sec. Sec. 141-146) does not render census
questions an unconstitutional invasion of a person's right to
privacy. United States v Little, 321 F Supp 388 (D. Del. 1971).
16. ``While Sec. 2 [article I, clause 3] expressly provides for an
enumeration of persons, Congress has repeatedly directed an
enumeration not only of the freed persons in the states, but
also those in the territories, and has required all persons
over 18 years of age to answer an ever-lengthening list of
inquiries concerning their personal and economic affairs. This
extended scope of the census has received the implied approval
of the Supreme Court [Legal Tender Cases, 79 U.S. (12 Wall.)
457, 536 (1870)]; it is one of the methods whereby the national
legislature exercises its inherent power to obtain the
information necessary for intelligent legislative action.''
Constitution of the United States of America: Analysis and
Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess., p. 106.
17. Rule XI clause (16)(a), House Rules and Manual Sec. 711 (1973). The
former Committee on the Census was consolidated into this
committee by the Legislative Reorganization Act of 1946, 60
Stat. 812, Jan. 2, 1947.
---------------------------------------------------------------------------
Although the 14th amendment provides that when the right to vote in
certain elections is denied to any male inhabitants of a state, the
basis of representation shall be proportionately
reduced,(18) a reduction in the representation of a state in
the House for denial of voting rights has never been
made.(19) Unsuccessful attempts have been made by Members of
the House (20) and by citizens to require that in taking the
census the Census Bureau determine the number of disenfranchised
persons in each state and make the reduction provided for in the 14th
amendment.(1)
---------------------------------------------------------------------------
18. Proportionate reduction of representation for denial of right to
vote, under the 14th amendment, Sec. 2, refers to the right to
vote as established by the laws and constitution of the state.
Lassiter v Northampton County Bd. of Elections, 360 U.S. 45
(1959); McPherson v Blacker, 146 U.S. 39 (1892); Daly v
Madison, 378 Ill. 357, 38 N.E. 2d 160 (1941).
A collateral attack was made on the composition of the
House, for alleged violation of the 14th amendment, in Dennis v
United States, 171 F2d 986 (D.C. Cir. 1948), aff'd, 339 U.S.
162 (1950), where a defendant in a congressional contempt
proceeding unsuccessfully claimed that committee action was
invalid, one Member being an ``interloper'' rather than a
Representative since his state was entitled to four instead of
seven Representatives pursuant to the 14th amendment.
19. Congress has provided by statute that in case of apparent
disenfranchisement by a particular state, certain steps be
taken to regulate federal elections in such state. See 42 USCA
Sec. 1971(e), and the discussion thereof in South Carolina v
Katzenbach, 383 U.S. 301 (1966).
20. See Sec. Sec. 2.7, 2.8, infra.
For an analysis of legislative attempts to enforce the 14th
amendment, Sec. 2, since it was ratified, see Zuckerman, A
Consideration of the History and Present Status of Section 2 of
the Fourteenth Amendment, 30 Fordham L. Rev. 93 (1961).
1. Some appellate courts have held that enforcement of the provision
is within Congress' discretion and presents a nonjustifiable
political question. Saunders v Wilkins, 152 F2d 235 (4th Cir.
1945), cert. denied, 328 U.S. 870 (1946); Lampkin v Connor, 239
F Supp 757 (D.D.C. 1965), aff'd, 360 F2d 505 (D.C. Cir. 1966).
Omission from a census form of a question relating to voter
disenfranchisement does not render the taking of a census
unconstitutional notwithstanding the provisions of the 14th
amendment. United States v Sharrow, 309 F2d 77 (2d Cir. 1962),
cert. denied, 372 U.S. 949, rehearing denied 372 U.S. 982
(1963).
A New York resident had no standing to seek an injunction
against the transmittal to the President by the Census Director
of the 1970 census on grounds that the 14th amendment reduction
had not been made, where the plaintiff failed to show that he
had been injured thereby. Sharrow v Brown, 447 F2d 94 (2d Cir.
1971).
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[[Page 842]]
Results of the census are transmitted to Congress by the President,
who is directed by law to compute the prospective allocation of
Representatives to states pursuant to the mathematical method appointed
by Congress.(2) Since 1941, the method of ``equal
proportions'' has been used to determine reapportionment
questions.(3)
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2. The power of Congress to direct how the enumeration shall be made
and transmitted is derived from U. S. Const. art. I, Sec. 2,
clause 3: ``The actual enumeration shall be made within three
years after the first meeting of the Congress of the United
States, and within every subsequent term of 10 years, in such
manner as they shall by law direct.''
The transmission of the census results to Congress is
provided for by 2 USC Sec. 2a.
Under the act of June 18, 1929, 46 Stat. 26, the President
was required to ascertain the number of Representatives to
which each state would be entitled under both the methods of
equal proportions and of major fractions. For a description of
those methods, see Sec. 1, supra.
3. See Sec. 2.6, infra.
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Until 1920, at the time of the 16th census, congressional
reapportionment legislation was adopted based on each new
enumeration.(4) Following the 1920 census, however, no
legislative action was taken, and Congress determined in 1926 that the
constitutional provision providing for reapportionment following a
census was directory rather than mandatory.(5) In 1929,
Congress enacted into law a procedure whereby apportionment following
and based upon a census would automatically take effect if Congress
chose not to act.(6) Under
[[Page 843]]
this procedure, reapportionment is based on the method of equal
proportions, and the Clerk of the House notifies state officials of the
number of seats in the House to which the state is
entitled.(7)
---------------------------------------------------------------------------
4. Although art. I, Sec. 2, clause 3 directs that Representatives be
apportioned among the states according to their respective
numbers, and expressly authorizes Congress to provide for an
enumeration every 10 years by law, the power to allocate seats
in the House to the states after the enumeration is not
expressly stated within the clause but has always been acted
upon by Congress as ``irresistibly flowing from the duty''
directed by the Constitution. Prigg v Pennsylvania, 41 U.S. (16
Peters) 619 (1842).
5. See 1.2, supra.
6. Act of June 18, 1929, 46 Stat. 26.
7. 2 USC Sec. 2a (the act of 1929 as amended by the act of Apr. 25,
1940, 54 Stat. 162 and the act of Nov. 15, 1941, 55 Stat. 761).
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Reapportionment legislation has no privileged status under the
Constitution and cannot interrupt the regular rules of proceeding of
the House. Reapportionment legislation has been considered in the
Committee of the Whole,(8) and proposals on apportionment
are within the jurisdiction of the Committee on the
Judiciary.(9)
---------------------------------------------------------------------------
8. See Sec. 2.5, infra.
9. Rule XI clause 14(b), House Rules and Manual Sec. 707 (1973).
---------------------------------------------------------------------------
If a reapportionment of seats causes an increase or decrease in the
number of seats to which a state is entitled, the state must redistrict
itself into single-member districts consistent with constitutional
requirements.(10)
---------------------------------------------------------------------------
10. See 2 USCA Sec. Sec. 2a and 2c. For redistricting in general, see
Sec. 3, infra.
---------------------------------------------------------------------------
Maximum numerical membership of the House was fixed at 435 by the
act of 1911.(11) There was a temporary increase to 437
Members between 1959 and 1963 when two new states were
added,(12) but the membership has returned to 435.
---------------------------------------------------------------------------
11. The act of Aug. 8, 1911, 37 Stat. 13 provided, under the 13th
census, for 433 Members, with the stipulation that if the
Territories of Arizona and New Mexico should become states they
should have one Representative each. Arizona and New Mexico
became states in 1912; see the Presidential proclamation set
out in 37 Stat. 1723.
12. Alaska and Hawaii were admitted as states and granted one
Representative each. See 2 USCA Sec. 2a.
---------------------------------------------------------------------------
A state has no claim to seats additional to those allotted by
Congress, and attempts by states to send to Congress more than its
allotted number of Representatives have been
unsuccessful.(13)
---------------------------------------------------------------------------
13. See 1 Hinds' Precedents Sec. Sec. 314-319. For a discussion of the
supremacy of congressional authority over allocation of seats
in the House to the several states see 1, supra.
---------------------------------------------------------------------------
Collateral References
The Decennial Population Census and Congressional Apportionment, H.
Rept. No. 91-1314, 91st Cong. 2d Sess., Subcommittee on Census and
Statistics, Committee on Post Office and Civil Service.
Van Alstyne, The Fourteenth Amendment, the ``Right'' to Vote, and the
Understanding of the Thirty-Ninth Congress, 1965 Sup. Ct. Rev. 33
(1965).
Zuckerman, A Consideration of the History and Present Status of Section
2 of the Fourteenth Amendment, 30 Fordham L. Rev. 93 (1961).
[[Page 844]]
Taking the Census
Sec. 2.1 When providing for the taking of the census and submission of
results to Congress, Congress may also provide for the taking of
other statistics.(14)
---------------------------------------------------------------------------
14. See generally 13 USC Sec. Sec. 1 et seq.
---------------------------------------------------------------------------
On June 4, 1929, when the House was considering in the Committee of
the Whole a bill dealing with the taking of the census and the
submission of the results to Congress, Chairman Carl R. Chindblom, of
Illinois, ruled that amendments to take additional statistics, such as
to take a census of aliens,(15) and to take a census of
qualified voters whose right to vote has been denied or
abridged,(16) were germane.
---------------------------------------------------------------------------
15. 71 Cong. Rec. 2338, 2339, 71st Cong. 1st Sess.
16. Id. at p. 2348.
---------------------------------------------------------------------------
Sec. 2.2 The President transmits to the Congress the results of the
decennial census and the proposed reapportionment of
Representatives among the states.
On Jan. 2, 1961,(17) the President sent to the Congress
a message relating to the census of 1960 and to a reapportionment of
House seats:
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17. 107 Cong. Rec. 649, 87th Cong. 1st Sess., Jan. 12, 1961. See also
97 Cong. Rec. 114, 82d Cong. 1st Sess., Jan. 9, 1951; and 87
Cong. Rec. 70, 77th Cong. 1st Sess., Jan. 8, 1941.
To the Congress of the United States:
Pursuant to the provisions of section 22(a) of the act of June
18, 1929, as amended (2 U.S.C. 2a), I transmit herewith a statement
prepared by the Director of the Census, Department of Commerce,
showing (1) the whole number of persons in each State, as
ascertained by the Eighteenth Decennial Census of the population,
and (2) the number of representatives to which each State would be
entitled under an apportionment of the existing number of
representatives by the method of equal proportions.
Dwight D. Eisenhower,
The White House,
January 10, 1961.
Sec. 2.3 Since 1940, all Indians have been included in the census
enumeration, with the acquiescence of Congress, because they are
subject to federal taxation.
On Jan. 8, 1941, the Presidential message transmitting the results
of the 1940 census and the projected allocation of seats in the House
to the states was laid before the House.(18)
---------------------------------------------------------------------------
18. 87 Cong. Rec. 70, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
The last paragraph of the President's message read as follows:
The Director of the Census has included all Indians in the
tabulation of
[[Page 845]]
total population since the Supreme Court has held that all Indians
are now subject to Federal taxation (Superintendent v Commissioner,
295 U.S. 418). The effect of this upon apportionment of
representatives, however, appears to be for determination by the
Congress, as concluded in the Attorney General's opinion of
November 28, 1940, to the Secretary of Commerce, a copy of which is
annexed hereto.(1)
---------------------------------------------------------------------------
1. The U.S. Constitution, amendment 14, Sec. 2 provides that all
persons be counted in the census except ``Indians not taxed.''
The Attorney General has stated that whatever
``construction the Congress will now give to the phrase
`Indians not taxed' is a question for it to decide, and action
taken by it with respect thereto will be final, subject only to
review by the courts in proper cases brought before them.'' 87
Cong. Rec. 71, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
The President's message was ordered referred and printed, and no
challenge or objection was made to the inclusion of Indians within the
enumeration.(2)
---------------------------------------------------------------------------
2. See also 97 Cong. Rec. 114, 82d Cong. 1st Sess., Jan. 9, 1951
(Indians included in 1950 census).
---------------------------------------------------------------------------
Consideration of Apportionment Legislation
Sec. 2.4 The House has determined that a motion to consider
reapportionment legislation following the taking of a census is not
privileged under the Constitution.
On Apr. 8, 1926, Mr. Henry E. Barbour, of California, rose ``to
present a privileged question under the Constitution of the United
States.'' The purpose of the motion was to discharge the Committee on
the Census from further consideration of a bill for the apportionment
of Representatives in Congress among the several states under the 14th
census and to provide that the House proceed to the immediate
consideration thereof. Mr. Bertrand H. Snell, of New York, made a point
of order against the motion, contending that it was not privileged
under House rules or procedures. He stated that there was ``no
mandatory provision in the Constitution itself which provides for
immediate apportionments; and, furthermore, if we did grant there was
such a provision, that there is no mandatory provision in the
Constitution which provides that it shall be done contrary to the rules
and procedure of the House.''
Mr. Snell analyzed a long line of precedents which had held that
motions to consider reapportionment legislation were privileged under
the Constitution but stated that those decisions should be overruled,
since the requirement in the Constitution that the House reapportion
Representatives following a census was directory and not
mandatory.(3)
---------------------------------------------------------------------------
3. 67 Cong. Rec. 7138-48, 69th Cong. 1st Sess.
Reference was also made to a report of the Committee on
Elections No. 3, 68th Cong. 1st Sess., Mar. 29, 1924,
indicating that a person could not claim a seat in the House
that was not allotted to the state by the House where
reapportionment following a census had not been made, since
reapportionment following the taking of a census is a customary
practice but not a constitutional requirement (see 6 Cannon's
Precedents Sec. 54).
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[[Page 846]]
After lengthy discussion, Speaker Nicholas Longworth, of Ohio,
stated that in his opinion the prior precedents, according
constitutional privilege to reapportionment legislation, should be
overruled. He declined to rule on the question, however, stating that
the question should be submitted to the House. The House then voted
that the consideration of the bill called up by Mr. Barbour's motion
was not in order as a question of constitutional privilege.
Sec. 2.5 Bills pertaining to the apportionment of seats to the several
states have been considered in the Committee of the
Whole.(4)
---------------------------------------------------------------------------
4. 71 Cong. Rec. 2258, 2259, 71st Cong. 1st Sess., June 3, 1929; 111
Cong. Rec. 5080, 5084, 89th Cong. 1st Sess., Mar. 16, 1965; 87
Cong. Rec. 1071-89, 77th Cong. 1st Sess., Feb. 17 1941; and 86
Cong. Rec. 4373, 76th Cong. 3d Sess., Apr. 11, 1940.
See also 6 Cannon's Precedents Sec. Sec. 51, 52.
---------------------------------------------------------------------------
Method of ``Equal Proportions''
Sec. 2.6 In 1941, Congress determined that seats for Representatives
should thereafter be allotted to the states under the method of
``equal proportions.''
Following the census of 1940, Congress determined, based on reports
of the House Census Committee incorporating recommendations of
prominent scientists, that seats for Representatives should thereafter
be allotted to the states under the method of equal
proportions.(5) If Congress passes no reapportionment
legislation following a census, the equal proportion method is
automatically used and the Clerk notifies the state of the number of
seats to which it is entitled in the House.(6)
---------------------------------------------------------------------------
5. Act of Nov. 15, 1941, 55 Stat. 761, codified as 2 USC Sec. 2a. For
detailed discussion of the mechanics of the method of equal
proportions, see Sec. 1, supra (summary).
In 1929, Congress provided that in submitting the results
of the decennial census to Congress, the President should
direct to be ascertained the number of Representatives to which
each state would be entitled under both the method of major
fractions and the method of equal proportions. Act of June 18,
1929, Ch. 28, Sec. 22, 46 Stat. 26.
6. 2 USCA Sec. 2a(b).
For House debate on H.R. 2665, on Feb. 17 and 18, 1941, to
adopt the method of equal proportions for apportionment of
Members to the states, see 87 Cong. Rec. 1071-89, 1123-30, 77th
Cong. 1st Sess. The method of equal proportions had been
preferred by the National Academy of Sciences (at p. 1072), and
extensive hearings were held by the Committee on the Census in
1940 on comparison between the various mathematical methods of
reapportionment and the degree to which they produced equal
representation in the House of Representatives.
By adoption of the equal proportions method retroactive to
the 1940 census, the apportionment in 1941 caused the State of
Arkansas to lose one seat and the State of Michigan to gain one
seat.
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[[Page 847]]
Reduction of Representation for Denial of Voting Rights
Sec. 2.7 To a bill dealing with the date for the periodic apportionment
of Representatives in Congress, an amendment providing that, in
submitting the statement to Congress and making the apportionment,
the reduction provided in section 2 of the 14th Amendment to the
Constitution shall be made, was held not germane.
On Apr. 11, 1940, the House was considering, in the Committee of
the Whole, S. 2505 to amend the 1929 apportionment bill in order to
change the date of subsequent apportionments. The change in date was
considered necessary in light of the 20th amendment to the
Constitution, which had changed the convening date of Congress and the
Presidential inauguration day.(7)
---------------------------------------------------------------------------
7. 86 Cong. Rec. 4373, 76th Cong. 3d Sess. The bill was passed and
became law (act of Apr. 25, 1940, Ch. 152, Sec. Sec. 1, 2, 54
Stat. 162); see 2 USC Sec. 2a, as amended.
---------------------------------------------------------------------------
Mr. John C. Schafer, of Wisconsin, offered an amendment directing
that in submitting the census to Congress, the President reduce the
basis of representation for states where required by the 14th amendment
of the U.S. Constitution.(8)
---------------------------------------------------------------------------
8. The 14th amendment, Sec. 2, provides that where the right to vote
is denied by a state, the basis of representation in the state
shall be reduced in the proportion which the number of male
citizens denied the vote shall bear to the whole number of such
citizens in the state.
---------------------------------------------------------------------------
Chairman Marvin Jones, of Texas, ruled that the amendment was not
germane to the pending bill, since the bill dealt only with the
mechanics of the apportionment and not with the census itself. He cited
a past precedent where a similar amendment, providing for a
proportionate reduction in the number of Representa
[[Page 848]]
tives allotted to a state pursuant to the 14th amendment, was held not
germane to reapportionment legislation.(9)
---------------------------------------------------------------------------
9. See also 8 Cannon's Precedents Sec. 2996 for a ruling that, to a
bill providing for reapportionment of Representatives in
Congress, an amendment authorizing redistricting of states in
accord with such apportionment was not germane.
---------------------------------------------------------------------------
Sec. 2.8 To a civil rights bill, an amendment establishing a
``Commission on Voting'' to report the number of citizens in each
state denied the right to vote and to calculate a new apportionment
of Representatives on the basis of such findings, was ruled out as
not germane.
On Feb. 4, 1964, while the House was considering title I of the
Civil Rights Bill of 1963, an amendment was offered to establish a
Commission on Voting to report the number of citizens in each state
denied the right to vote and to calculate a new apportionment of
Representatives on the basis of such findings.(10)
---------------------------------------------------------------------------
10. 110 Cong. Rec. 1899, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Chairman Eugene J. Keogh, of New York, ruled that the amendment was
not germane, citing the precedent of July 19, 1956, wherein Chairman
Aime J. Forand, of Rhode Island, held not germane a similar amendment
to a similar bill.(11)
---------------------------------------------------------------------------
11. For unsuccessful proposals to create a joint congressional
committee to implement the 14th amendment of the U.S.
Constitution by providing for reduction in representation for
denial of voting rights, see S. 2709, 85th Cong. 1st Sess.
(1957) and S. 1084, 86th Cong. 1st Sess. (1959).
---------------------------------------------------------------------------
CHAPTER 8
Elections and Election Campaigns
A. APPORTIONMENT; VOTING DISTRICTS
Sec. 3. Districting Requirements; Duty of States
After Congress has allocated a certain number of Representatives to
a state following a census,(12) some method must be
appointed by the state legislature for the election of such
Representatives. The power of a state legislature under article I,
section 4 of the U.S. Constitution, to divide the state into districts
to elect and to be represented by Members of the House is unquestioned,
although the way in which the state districts itself may be directed by
federal statute or by court order. A state must redistrict itself to
reflect changes in its allocated representation in the House as well as
population shifts indicated by the census.(13)
---------------------------------------------------------------------------
12. See 2, supra.
13. See Sec. 1, sup a, for a discussion of the delineations of power
between Congress, the states, and the courts over the census,
apportionment, and congressional districting.
See also, Schmeckebier, Congressional Apportionment
(Washington, 1941); Celler, Congressional Apportionment--Past,
Present and Future, 17 Law and Contem. Prob. 286 (1952);
Hearings on Congressional Districting (H.R. 8953 and related
proposals), subcommittee No. 5, House Committee on the
Judiciary, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
[[Page 849]]
The first attempt by Congress to exercise its constitutional power
over state districting under article I, section 4, providing for
preemption of state law by federal law over election procedure, was
undertaken in 1842, when Congress provided that states with more than
one Representative should establish single-member districts of
contiguous territory.(14) The single-member districting
requirement was eliminated in 1850 (15) but reinstated in
1862.(16) In 1872, Congress added a requirement that
districts be as equal in population as practicable (17) and
in 1901 a requirement was added that districts be compact as well as
contiguous.(18) The three requirements--of single-member
districts, of contiguity, and of compactness--were consolidated in the
Reapportionment Act of 1911.(19)
---------------------------------------------------------------------------
14. Act of June 25, 1842, 5 Stat. 491.
15. Act of May 23, 1850, 9 Stat. 428.
16. Act of July 14, 1862, 12 Stat. 572.
17. Act of Feb. 2, 1872, 17 Stat. 28.
18. Act of Jan. 16, 1901, 31 Stat. 733.
19. Act of Aug. 8, 1911, 37 Stat. 13.
---------------------------------------------------------------------------
Between 1842 and 1911 Congress did not enforce the statutory
provisions mandating state districting requirements for congressional
elections. In 1842, 1901, and 1910,(20) the House rejected
challenges to rights to seats based on state noncompliance with the
federal districting standards. There was, in addition, some question as
to the power of the courts to enforce the requirements for
congressional districts.(1)
---------------------------------------------------------------------------
20. 1 Hinds' Precedents Sec. Sec. 310, 313; 6 Cannon's Precedents
Sec. 43.
1. See the following language in Oregon v Mitchell, 400 U.S. 112, 121
(1970): ``And in Colgrove v. Green, 328 U.S. 549 (1946), no
Justice of this court doubted Congress' power [under article I,
Sec. 4] to rearrange the congressional districts according to
population; the fight in that case revolved about the judicial
power to compel redistricting.''
---------------------------------------------------------------------------
When the Apportionment Act of 1929,(2) establishing a
permanent procedure for apportionment of seats in the House, was
enacted, none of the prior districting requirements were included
therein. Following that legislative action, the Supreme Court in a 1932
case ruled the federal districting standards no longer
operative.(3)
---------------------------------------------------------------------------
2. Act of June 18, 1929, 46 Stat. 26.
3. Wood v Broom, 287 U.S. 1 (1932). See also Exon v Tiemann, 279 F
Supp 603 (D. Neb. 1967).
---------------------------------------------------------------------------
[[Page 850]]
In 1946, when Illinois voters sued in federal court to enjoin the
holding of a forthcoming congressional election, claiming
constitutional and statutory violations of districting requirements,
the Supreme Court affirmed the dismissal of the case because the
statutory requirements had been superceded by the 1929 Reapportionment
Act, and because the issue presented a nonjusticiable political
question.(4) The Court pointed to article I, section 4 of
the Constitution as conferring ``upon Congress exclusive authority to
secure fair representation by the states in the popular House'' and
stated that if Congress failed in that respect, ``the remedy ultimately
lies with the people.'' (5)
---------------------------------------------------------------------------
4. Colgrove v Green, 328 U.S. 549 (1946).
5. Id. at p. 554.
---------------------------------------------------------------------------
In 1964, the Supreme Court invalidated for the first time, in
Wesberry v Sanders, a Georgia congressional districting statute which
accorded some districts more than twice the population of
others.(6) The political-question doctrine of Colgrove v
Green (7) was overruled in reliance on the state
apportionment case of Baker v Carr.(8) The Court held in
Wesberry that the command of article I, section 2 of the Constitution
that Representatives be chosen by the people of the several states
means that as nearly as practicable one man's vote in a congressional
election is to be worth as much as another's.(9) The Court
did not establish specific requirements for congressional districts,
stating that although it may not be possible to draw them with a
mathematical precision, equal representation for equal numbers of
people was the fundamental goal of redistricting.(10)
---------------------------------------------------------------------------
6. 376 U.S. 1 (1964). See also the companion case, Wright v
Rockefeller, 376 U.S. 52 (1964) (failure to show racially
discriminatory districting in New York).
7. 328 U.S. 549 (1946).
8. 369 U.S. 186 (1962).
9. 376 U.S. 1 at pp. 7, 8 (1964).
10. The court drew on the Constitutional and Ratifying Conventions to
demonstrate that the purpose of the ``Great Compromise'' was to
afford equal representation for equal numbers of people in the
House of Representatives. Id. at pp. 13, 18.
By 1968, the majority of congressional district lines had
been redrawn, with only nine states having a population
deviation in excess of 10 percent from the state average, and
24 states having no deviation as large as five percent. McKay,
Reapportionment: Success Story of the Warren Court, 67 Mich. L.
Rev. 223, 229 (1968).
---------------------------------------------------------------------------
The Supreme Court decision in Wesberry impelled Congress to act
[[Page 851]]
upon federal redistricting requirements, and in 1967 a bill was enacted
into law requiring that districts be limited to a single
member.(11) No other congressional requirements were
established, although attempts were made to legislate allowable
percentage variances of congressional districts.(12)
---------------------------------------------------------------------------
11. See Sec. 3.3, infra.
The single-member district requirement of 2 USC Sec. 2c
removed the prior command of 2 USC Sec. 2a(c) that elections be
held at-large upon legislative failure to redistrict. Preisler
v Secretary of State, 279 F Supp 952 (W.D. Mo. 1967), aff'd,
394 U.S. 526 (1969), rehearing denied, 395 U.S. 917 (1970).
12. See Sec. 3.3, infra. For other attempts to enact federal
districting standards, and the procedure by which their
consideration was governed, see Sec. Sec. 3.43.7 infra.
---------------------------------------------------------------------------
In 1969, the Supreme Court reenforced the Wesberry opinion by
invalidating congressional redistricting in Missouri, where districts
were several percentage points above or below the mathematical ideal.
The Court would allow only ``the limited population variances which are
unavoidable despite a good faith effort to achieve absolute equality,
or for which Justification is shown'' (13) and stated that
economic, social, or political factors do not suffice for justification
of variances.(14) The Court added that districting could be
based on eligible voter population rather than total population, if
accurately and completely computed, and that population shifts over a
10-year period could be anticipated in redistricting but findings as to
such shifts must be thoroughly documented and systematically applied
statewide.(15) In other decisions on congressional
redistricting the Supreme Court has required a state showing of good
faith effort to achieve precise mathematical equality among all
districts,(16) and has applied a test of practicability,
under the particular circumstances of the state involved, in drawing
districts.(17)
---------------------------------------------------------------------------
13. Kirkpatrick v Preisler, 394 U.S. 526 (1969). See also the companion
case, Wells v Rockefeller, 394 U.S. 542 (1969) (state must
demonstrate good faith effort to achieve precise mathematical
equality among congressional districts).
14. Kirkpatrick v Preisler, 394 U.S. 526 (1969).
15. Id. See also Lucas v Rhodes, 389 U.S. 212 (1967) (per curiam),
where the court affirmed the finding of unconstitutionality
applied to congressional redistricting in Ohio where unofficial
but incomplete post-census population figures were taken into
account.
16. Wells v Rockefeller, 394 U.S. 542 (1969) (New York State).
17. Dinis v Volpe, 264 F Supp 425 (D. Mass. 1967), aff'd, 389 U.S. 570
(1968) (per curiam).
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[[Page 852]]
The allowable population variance in percentage points for any
district from the state average remains undefined. However, it has been
held that a state plan providing for some districts with twice the
population of others in the same state,(18) or which vary 25
percent from the state population norm,(19) is
unconstitutional. A variance of 10 percent to 15 percent has been both
accepted and rejected by the Court.(20)
---------------------------------------------------------------------------
18. Wesberry v Sanders, 376 U.S. 1 (1964).
19. Dinis v Volpe, 389 U.S. 570 (1968) (per curiam).
20. See the dissenting opinion of Justice Harlan in Rockefeller v
Wells, 389 U.S. 421 (1967) (per curiam), stating that the Court
had left the lower courts and Congress without guidance for
congressional redistricting. See also his dissenting opinions
on the same subject in Grills v Branigin, 390 U.S. 932 (1968)
(stay denied) and Lucas v Rhodes, 389 U.S. 212 (1967) (per
curiam).
---------------------------------------------------------------------------
On the subject of ``gerrymandering,'' or the drawing of
congressional district lines with the motivation or affect of
benefiting an incumbent, political party or racial group,(1)
the Supreme Court has stated that citizens challenging a congressional
redistricting act on the grounds of racial discrimination must show
either racial motivation or actual districting along racial
lines.(2)
---------------------------------------------------------------------------
1. See Guide to Congress, pp. 502, 503, 505, 506, Congressional
Quarterly Inc. (Washington 1971).
Districting requirements for special election to fill
vacancy, Sec. 9, infra.
2. Wells v Rockefeller, 376 U.S. 52 (1964). The Court has more
pointedly addressed gerrymandering in districting for state and
local elective officials. See, for example, Gomillion v
Lightfoot, 364 U.S. 339 (1960).
See also Edwards, The Gerrymander and ``One Man, One
Vote,'' 46 N.Y.U.L. Rev. 879 (1971).
---------------------------------------------------------------------------
Some disputes have arisen concerning the validity under state law
of redistricting action taken by the states. Following the 1930 census,
a series of cases arose in which the right of the Governor to veto a
reapportionment bill was questioned. The U.S. Supreme Court ruled that
the state function to redistrict itself for congressional elections was
legislative in character and therefore subject to gubernatorial veto
under the same terms as other state legislation.(3)
---------------------------------------------------------------------------
3. See Smiley v Holm, 285 U.S. 355 (1932); Koenig v Flynn, 285 U.S.
375 (1932); Carroll v Becker, 285 U.S. 380 (1932).
In Grills v Branigin, 284 F Supp 176 (D. Ind. 1968), aff'd,
391 U.S. 364 (1969), a federal court held that only the state
general assembly had the power to create congressional
districts, an elections board lacking legislative power under
the state and federal constitutions.
---------------------------------------------------------------------------
[[Page 853]]
Congressional Standards for Districting
Sec. 3.1 In transmitting the 1950 census results to Congress, the
President recommended the adoption by Congress of federal standards
for congressional districting.
On Jan. 9, 1951, the President transmitted pursuant to statute the
results of the 1950 census to Congress.(4) Within his
message on the census he included an appraisal of the wide
discrepancies in congressional districting among the states and
recommended that Congress re-establish former statutory requirements of
compact, contiguous single-member districts with as nearly as
practicable an equal number of inhabitants. The message also supported
Congress' power, under article I, section 4 of the Constitution, to
establish congressional districting requirements and to compel
compliance therewith.(5)
---------------------------------------------------------------------------
4. 98 Cong. Rec. 114, 82d Cong. 1st Sess.
5. Legislation in response to the President's message was introduced
by Emanuel Celler, of New York, Chairman of the Committee on
the Judiciary, in the 82d and subsequent Congresses but was not
acted upon. See, e.g., H.R. 2648, 82d Cong. 1st Sess. (1951);
H.R. 6156, 82d Cong. 2d Sess. (1952); H.R. 6428, 83d Cong. 1st
Sess. (1953); H.R. 8239, 84th Cong. 2d Sess. (1956).
---------------------------------------------------------------------------
Sec. 3.2 The Committee on the Judiciary has recommended in reports on
districting legislation that Congress establish specific guidelines
in the absence of judicial standards.
On several occasions since the Supreme Court's entry into the field
of congressional districting,(6) the Committee on the
Judiciary, which has jurisdiction over congressional
districting,(7) has submitted reports on proposals to
establish standards for congressional districting by the states. On
those occasions, the committee has recommended that such guidelines be
adopted due to the failure of the judiciary to prescribe definite
standards.(8)
---------------------------------------------------------------------------
6. See Wesberry v Sanders, 376 U.S. 1 (1964).
7. Rule XI clause 13(b), House Rules and Manual Sec. 707 (1973).
8. H. Rept. No. 191, Committee on the Judiciary, 90th Cong. 1st Sess.
(1967); H. Rept. No. 486, Committee on the Judiciary, 92d Cong.
1st Sess. (1971); H. Rept. No. 140, Committee on the Judiciary,
89th Cong. 1st Sess. (1965). Justice Harlan, in his dissenting
opinion in Rockefeller v Wells, 389 U.S. 421 (1967) (per
curiam), cited the latter report for the proposition that the
Court had left both the lower courts and Congress without
guidance in drawing congressional district lines.
[[Page 854]]
Sec. 3.3 Except to require single-member congressional districts,
Congress has declined since 1929 to set standards for congressional
districting by the states.(9)
---------------------------------------------------------------------------
9. Congress has affirmed that it has the constitutional power to
establish congressional districting requirements. See 111 Cong.
Rec. 5080, 89th Cong. 1st Sess., Mar. 16, 1965; 113 Cong. Rec.
11064-71, 90th Cong. 1st Sess., Apr. 27, 1967.
Prior to 1929, Congress required that the states district
themselves so as to produce compact, contiguous, and single-
member congressional districts. See the act of Aug. 8, 1911,
Ch. 5, Sec. 30, 37 Stat. 14. That act, which was formerly
codified as 2 USC Sec. 3, expired by its own limitation upon
the enactment of the Reapportionment Act of June 18, 1929, Ch.
28, 46 Stat. 21, as amended, 2 USC Sec. 2a. See Wood v Broom,
287 U.S. 1 (1932), where the Supreme Court held that the 1911
act had become inoperative upon the enactment of the 1929 act.
---------------------------------------------------------------------------
In 1967, Congress required that all states establish a number of
districts equal to the number of Representatives to which each such
state is so entitled, with one Representative to be elected from each
such district.(10)
---------------------------------------------------------------------------
10. Pub. L. No. 90-196, 81 Stat. 581, Dec. 14, 1967 (2 USC Sec. 2c).
Districting legislation in the 90th Congress as originally
proposed by the House Committee on the Judiciary and as passed
by the House provided not only for single-member districts but
also for compactness and contiguity, and fixed a maximum
percentage variance among districts. 113 Cong. Rec. 11089, 90th
Cong. 1st Sess., Apr. 27, 1967. The Senate desired a smaller
and more immediate percentage variance, and never reached
agreement with the House on the bill. 113 Cong. Rec. 31712,
90th Cong. 1st Sess., Nov. 8, 1967.
---------------------------------------------------------------------------
The Congress has declined to set any other standards as to
congressional redistricting by the states.(11)
---------------------------------------------------------------------------
11. See, for example, the legislative history of H.R. 5505, 89th Cong.
1st Sess. (1965), and H.R. 8953 and 10645, 92d Cong. 1st Sess.
(1971); see also the announcement of the Chairman of the
Committee on the Judiciary describing committee action taken on
a redistricting bill, 117 Cong. Rec. 28945, 28946, 92d Cong.
1st Sess., Aug. 2, 1971, and the committee's report, H. Rept.
No. 92-486, 92d Cong. 1st Sess. (1971).
---------------------------------------------------------------------------
Consideration of Districting Legislation
Sec. 3.4 Legislation regulating congressional redistricting has been
considered in the Committee of the Whole.(12)
---------------------------------------------------------------------------
12. 113 Cong. Rec. 11071, 90th Cong 1st Sess., Apr. 27, 1967; 111 Cong.
Rec. 5084, 89th Cong. 1st Sess., Mar. 16, 1965.
---------------------------------------------------------------------------
Sec. 3.5 Legislative proposals setting standards for congres
[[Page 855]]
sional districting have been considered by the House pursuant to a
special rule or order limiting amendment of the proposal.
On Mar. 16, 1965, Howard W. Smith, of Virginia, Chairman of the
Committee on Rules, offered House Resolution 272, providing that H.R.
5505, on federal standards for congressional districting, be considered
under limited power to amend.(13) After some debate, a
``modified closed rule'' was adopted by the House.(14)
---------------------------------------------------------------------------
13. 111 Cong. Rec. 5080, 89th Cong. 1st Sess.
14. Id. at p. 5084.
---------------------------------------------------------------------------
On Apr. 27, 1967, the House adopted House Resolution 442, providing
for a ``closed'' rule on H.R. 2508, requiring the establishment of
congressional districts of contiguous and compact territory, and for
other purposes.(15) Mr. B.F. Sisk, of California, a member
of the Committee on Rules, explained that the closed rule was proposed
because of the complicated provisions of the legislation and because of
the urgency of passage, although closed rules were not normally
considered for such legislation.(16) Opposition to the
closed rule was voiced by Mr. John Conyers, Jr., of Michigan, and Mr.
Richard L. Ottinger, of New York, because of the serious constitutional
and political issues raised by the bill.(17)
---------------------------------------------------------------------------
15. 113 Cong. Rec. 11071, 90th Cong. 1st Sess.
16. Id. at pp. 11064, 11065.
17. Id. at pp. 11069, 11070.
---------------------------------------------------------------------------
Sec. 3.6 To a joint resolution proposing a constitutional amendment
relating to the election of the President and Vice President by
popular vote rather than through the electoral college process, an
amendment pertaining to standards for congressional districting was
ruled not germane.(18)
---------------------------------------------------------------------------
18. An amendment providing for the redistricting of states has also
been held not germane to a bill dealing with reapportionment.
71 Cong. Rec. 2364, 2444, 2445, 71st Cong. 1st Sess., June 6,
1929.
---------------------------------------------------------------------------
On Sept. 18, 1969, the House was considering in the Committee of
the Whole a joint resolution proposing an amendment to the Constitution
providing for a popular vote rather than an electoral vote for the
offices of President and Vice President.(19)
---------------------------------------------------------------------------
19. 115 Cong. Rec. 25966, 91st Cong. 1st Sess. (H.J. Res. 681).
---------------------------------------------------------------------------
An amendment was offered by Mr. Thaddeus J. Dulski, of New York,
requiring that the states establish compact and contiguous single-
member districts for con
[[Page 856]]
gressional elections. Chairman Wilbur D. Mills, of Arkansas, ruled that
the amendment was not germane to the joint resolution, since nothing in
the resolution pertained to the apportionment or election of
Representatives.(20)
---------------------------------------------------------------------------
20. Id. at pp. 25983, 25984.
---------------------------------------------------------------------------
Unequal Representation in Primary
Sec. 3.7 The House refused to overturn an election in a state with a
``county unit'' primary election system, where less populous
counties were entitled to a disproportionately large electoral vote
for nominees.
On Apr. 27, 1948, the House adopted without debate House Resolution
553, dismissing the Georgia election contest of Lowe v
Davis.(1)
---------------------------------------------------------------------------
1. 94 Cong. Rec. 4902, 80th Cong. 2d Sess.
See also Ch. 9, infra, for election contests generally.
---------------------------------------------------------------------------
Parliamentarian's Note: The House in this case refused to
invalidate the Georgia ``county unit'' system for primaries, requiring
use of county electoral votes rather than popular votes for choosing
nominees. Under the system each candidate was required to receive a
majority of county unit votes for nomination, and unit votes were
allotted in favor of less populous counties rather than strictly by
population.(2)
---------------------------------------------------------------------------
2. See the elections committee report in the case, H. Rept. No. 1823,
80th Cong. 2d Sess. (1948). The Supreme Court later invalidated
the use of the ``county unit'' system. Gray v Sanders, 372 U.S.
368 (1963).
---------------------------------------------------------------------------
CHAPTER 8
Elections and Election Campaigns
A. APPORTIONMENT; VOTING DISTRICTS
Sec. 4. Failure of States to Redistrict
Congressional redistricting is a legislative function for the
several states.(3) The failure of a state in this regard may
arise either through neglect to pass any new districting legislation
after reallocation of House seats or population changes reflected in
the census, or through enactment of legislation which does not satisfy
the requirements of the Constitution, federal statutes, or state
law.(4)
---------------------------------------------------------------------------
3. For discussion of state responsibility for congressional
districting, see Sec. Sec. 1, 3, supra.
4. For past and present congressional districting requirements, see
Sec. 3, supra.
---------------------------------------------------------------------------
Where a state's districting plan is defective, the remedy lies
either with Congress or with the courts. Since Congress not only has
the
[[Page 857]]
power to enact federal standards for congressional
districts,(5) but also is the sole judge of the elections
and returns of its Members,(6) the House has the power to
investigate the congressional districting plan of any state and to deny
seats to Members from states which have drawn defective district lines
or no district lines at all.(7) There appears to be no doubt
that Congress has the power to compel a state to redraw its
congressional district lines in accordance with existing
law.(8) However, the House has declined on at least three
occasions to deny seats to Members from states in violation of federal
districting statutes.(9)
---------------------------------------------------------------------------
5. See U.S. Const. art. I, Sec. 4, clause 1. For the relationship of
that clause to federal districting standards, see Sec. 3,
supra.
6. U.S. Const. art. I, Sec. 5, clause 1.
7. However, a court finding that a particular state districting plan
is invalid does not cast doubt upon the validity of elections
in which Congressmen then serving have been elected, or upon
their right to serve out terms for which elected. Grills v
Branigin, 284 F Supp 176 (S.D. Ind. 1968), aff'd, 391 U.S. 364
(1969).
8. ``And in Colgrove v. Green, 328 U.S. 549 (1946), no Justice of this
court doubted Congress' power [under U.S. Const. art. I,
Sec. 4] to rearrange the congressional districts according to
population. . . .'' Oregon v Mitchell, 400 U.S. 112, 121
(1970).
9. See 1 Hinds' Precedents Sec. Sec. 310, 313; 6 Cannon's Precedents
Sec. 43.
---------------------------------------------------------------------------
The federal courts and on some occasions the state courts have
taken affirmative action to correct a failure of a state to
redistrict.(10) In 1966, the U.S. Supreme Court first
allowed a federal district court to itself draw congressional district
lines in a state where the existing districting legislation was
unconstitutional.(11) On the subject of judicial
interference with the traditionally legislative function of
congressional districting, the Court has stated:
---------------------------------------------------------------------------
10. See Hearings on Congressional Districting (H.R. 8953 and related
proposals), subcommittee No. 5, House Committee on the
Judiciary, 92d Cong. 1st Sess., pp. 141-160.
Judicial intervention in the area of districting was
forecast: ``[T]hat the Constitution casts the right to equal
representation in the House in terms of affirmative
congressional power should not preclude judicial enforcement of
the right in the absence of legislation. Such judicial action
is commonplace in other areas.'' Lewis, Legislative
Apportionment in the Federal Courts, 71 Harv. L. Rev. 1057,
1074 (1958).
Although the courts may review districting, they have no
power over the allocation of seats by Congress to the states.
See Saunders v Wilkins, 152 F2d 235 (4th Cir. 1945), cert.
denied, 328 U.S. 870, rehearing denied, 329 U.S. 825 (1946).
11. Maryland Citizens' Committee for Fair Congressional Districting v
Tawes, 253 F Supp 731 (D. Md. 1966), aff'd sub nom, Alton v
Tawes, 384 U.S. 315 (1966).
---------------------------------------------------------------------------
Legislative reapportionment is primarily a matter for
legislative deter
[[Page 858]]
mination and consideration and judicial relief becomes appropriate
only when the legislature fails to reapportion according to Federal
constitutional requisites in timely fashion after having had
adequate opportunity to do so.(12)
---------------------------------------------------------------------------
12. Dinis v Volpe, 264 F Supp 425 (D. Mass. 1967), aff'd, 389 U.S. 570
(1968) (per curiam).
Congressional attempts to restrict the power of the judiciary over
congressional districting have not been successful.(13)
---------------------------------------------------------------------------
13. On Nov. 8, 1967, the Senate considered a conference report on H.R.
2508, to require the establishment of compact and contiguous
congressional districts, and for other purposes. A portion of
the bill, as reported from conference, provided that no state
could be required to redistrict prior to the 19th federal
decennial census unless the results of a special federal census
were available for use therein. See 113 Cong. Rec. 31708, 90th
Cong. 1st Sess. The language of the bill and its effect on the
power of the courts to compel congressional districting by the
states in accordance with the ``one man-one vote'' principle,
was extensively debated as to its clarity and
constitutionality. For challenges to the constitutionality of
the provision, see pp. 31696-31702. For remarks in support of
its constitutionality, see pp. 31707, 31708. The Senate
rejected the conference report (at p. 31712).
---------------------------------------------------------------------------
A federal court may retain jurisdiction of districting matters
pending appropriate action by the state legislature.(14) A
federal court may postpone election processes to provide more time for
redistricting,(15) but has allowed elections to be held
under invalid districting where there was no other
alternative.(16)
---------------------------------------------------------------------------
14. Grills v Branigin, 284 F Supp 176 (S.D. Ind. 1968), aff'd, 391 U.S.
364 (1969).
15. See Toombs v Fortson, 241 F Supp 65 (N.D. Ga. 1965), aff'd, 384
U.S. 210 (1966) (per curiam); Butterworth v Dempsey, 237 F Supp
302 (D. Conn. 1965).
16. Skolonick v Illinois State Electoral Board, 307 F Supp 698 (N.D.
Ill, 1969). See also Legislature v Reinecke. 99 Cal. Rptr. 481,
492 P.2d 385 (1972).
---------------------------------------------------------------------------
On several occasions, state courts have ordered congressional
districting plans into effect.(17)
---------------------------------------------------------------------------
17. See Legislature v Reinecke, 99 Cal. Rptr. 481, 492 P.2d 385 (1972);
People ex rel. Scott v Kerner, 33 Ill. 2d 460, 211 N.E.2d 736
(1965).
---------------------------------------------------------------------------
[[Page 859]]
CHAPTER 8
Elections and Election Campaigns
B. TIME, PLACE, AND REGULATION OF ELECTIONS
Sec. 5. In General; Federal and State Power
The U.S. Constitution delineates the respective areas of state and
federal regulatory power over congressional elections in the following
language:
The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the places of chusing
Senators.(18)
---------------------------------------------------------------------------
18. U.S. Const. art. I, Sec. 4, clause 1. See generally House Rules
and Manual Sec. Sec. 42-44 (1973).
---------------------------------------------------------------------------
This provision of the Constitution was adopted in order to furnish
a flexible scheme of regulatory authority over congressional elections,
to depend upon harmony and comity between the individual states and the
Congress.(19) The discretionary power vested in Congress to
supersede election regulations made by the states has only been
exercised where necessity required it to protect constitutional rights
or to remedy substantial inconsistencies among congressional elections
in the several states.(20)
---------------------------------------------------------------------------
19. See the Federalist No. 59 (Hamilton): ``It will not be alleged that
an election law could have been framed and inserted in the
Constitution which would have been always applicable to every
probable change in the situation of the country; and it will
therefore not be denied that a discretionary power over
elections ought to exist somewhere. It will, I presume, be as
readily conceded that there were only three ways in which this
power could have been reasonably modified and disposed: that it
must either have been lodged wholly in the national
legislature, or wholly in the state legislatures, or primarily
in the latter and ultimately in the former. The last mode has,
with reason, been preferred by the convention. They have
submitted the regulation of elections for the federal
government, in the first instance, to the local
administrations, which in ordinary cases and when no improper
views prevail, may be both more convenient and more
satisfactory; but they have reserved to the national authority
a right to interpose whenever extraordinary circumstances might
render that interposition necessary to its safety.''
20. Congress has acted to unify the time of congressional elections, 2
USC Sec. Sec. 1, 7, and the manner of balloting, 2 USC Sec. 9.
For the general relationship of state power to
congressional power over elections, see Ex parte Siebold, 100
U.S. 383 (1880).
---------------------------------------------------------------------------
Although Congress has the absolute power, as affirmed by numerous
decisions of the Supreme
[[Page 860]]
Court, to fashion a complete code for congressional
elections,(1) congressional regulation has been directed
largely towards the failure of the states to ensure the regularity of
elections under their own state laws and to the failure of the states
to adequately protect the voting rights of all citizens entitled to
vote.(2) The actual mechanism of holding congressional
elections is traditionally left by Congress to the province of the
states. In judging the elections and returns of its Members, the House
has usually deferred to state law on the procedure of
elections,(3) on recount remedies and the validity of
ballots,(4) and on the functions of state election
officials.(5)
---------------------------------------------------------------------------
1. ``It cannot be doubted that these comprehensive words [art. I,
Sec. 4] embrace authority to provide a complete code for
congressional elections, not only as to times and places, but
in relation to notices, registration, supervision of voting,
protection of voters, prevention of fraud and corrupt
practices, counting of votes, duties of inspectors and
candidates, and making a publication of election returns; in
short, to enact numerous requirements as to procedure and
safeguards which experience shows are necessary in order to
enforce the fundamental right involved.'' Smiley v Holme, 825
U.S. 355, 366 (1932).
Congress as judge of Members' qualifications, Ch. 7, supra.
2. See Sec. 6, infra. Congress has also legislated extensively in the
field of campaign practices (see Sec. Sec. 10 et seq., infra).
3. See Sec. 7, infra.
4. See Sec. 8, infra.
5. See Sec. Sec. 7, 8, infra.
---------------------------------------------------------------------------
The Constitution not only grants the states power over election
procedure, but also delegates to them the power to prescribe the
qualifications for voters, who must possess those qualifications
requisite to vote for the most numerous branch of the state
legislature.(6) However, variances among the states in
regard to the qualifications of electors have been greatly diminished
through constitutional amendment, through judicial decisions, and
through federal legislation.(7) The franchise has been
extended to all citizens, male or female, regardless of color, race,
creed, or wealth, who are at least 18 years of age. The right to vote
in primaries which are an integral part of the election process, to
register as voters, and to vote without discrimination, intimidation or
threats, have been ensured by civil rights legislation spanning from
1870 to the present. The courts have taken an active role in voiding
state statutes and practices which deny the
[[Page 861]]
right to vote or prescribe unreasonable and discriminatory
qualifications. Thus, although earlier judicial decisions suggested
that Congress had no right to interfere with state regulation of state
elections,(8) Congress in the Voting Rights Acts of 1964 and
1965 enacted regulations applicable to elections for both state and
federal officials.(9) The Supreme Court later upheld
Congress' power under the 14th and 15th amendments to the Constitution
to act to protect voters from state interference in state
elections.(10)
---------------------------------------------------------------------------
6. U.S. Const. art. I, Sec. 2, clause 1. See generally House Rules and
Manual Sec. Sec. 7, 8 (1973).
7. See generally Sec. 6, infra.
8. See Lackey v United States, 107 F 114 (6th Cir. 1901), cert.
denied, 181 U.S. 621; United States v Belvin, 46 F 381 (Cir.
Ct. Va. 1891); Ex parte Perkins, 29 F 900 (Cir. Ct. Ind. 1887).
9. Pub. L. No. 88-352, 78 Stat. 241 (1964); Pub. L. No. 89-110, 79
Stat. 437 (1965).
10. South Carolina v Katzenbach, 383 U.S. 301 (1966); Katzenbach v
Morgan, 384 U.S. 641 (1966).
---------------------------------------------------------------------------
The ultimate validity of elections rests on determinations by the
House and Senate as final judges of the elections and returns of their
respective Members,(11) and the temporary denial of a state
to a seat in the House or Senate is a necessary consequence of
Congress' power to judge such elections.(12) The House and
the Senate construe the effect of state and federal legislation on
elections both through the election contest process (13) and
through independent investigations of the regularity and propriety of
individual congressional elections.(14)
---------------------------------------------------------------------------
11. U.S. Const. art. I, Sec. 5, clause 1.
12. See Barry v United States ex rel. Cunningham, 279 U.S. 597 (1929).
13. See Sec. Sec. 5.4, 5.5, infra. See also Ch. 9, infra.
14. See Sec. 14, infra, for committee investigations of elections, and
Ch. 15, infra, for the investigative power of the House in
general.
---------------------------------------------------------------------------
Although there is no constitutional provision for representation in
the national legislature by territories of the United States or by the
seat of government, Congress has by statute extended nonvoting
representation in the House to those entities.(15) Where
popular elections are held in territories or in the seat of government,
limited power is delegated by Congress to the governing bodies thereof
to regulate the conduct of such elections. Election contests
challenging the regularity of elections or of results may be instituted
in regard to territorial elections as well as to congressional
elections within the states.(16)
---------------------------------------------------------------------------
15. For Delegates and the Resident Commissioner, see Ch. 7, supra.
16. See Sec. 5.5, infra.
Contested election statutes, procedures and cases, see Ch.
9, infra. -------------------
---------------------------------------------------------------------------
Jurisdiction of States
Sec. 5.1 The Senate delayed judging an election pending a de
[[Page 862]]
termination by the U.S. Supreme Court that a state could order an
election recount without violating the Senate's sole authority as
the judge of the elections and returns of its Members.
On Jan. 21, 1971, the Senate ordered ``that the oath may be
administered to Mr. Hartke, of Indiana, without prejudice to the
outcome of an appeal pending in the Supreme Court of the United States,
and without prejudice to the outcome of any recount that the Supreme
Court might order.'' (17)
---------------------------------------------------------------------------
17. 117 Cong. Rec. 6, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: Senator Vance Hartke was challenging the
request of his opposing candidate that the state order a recount of the
votes cast. Senator Hartke claimed that the recount was barred by
article I, section 5 of the Constitution, delegating to the Senate the
sole power to judge the elections and returns of its Members. The
Supreme Court later held that the constitutional provision did not
prohibit a state recount, it being mere speculation to assume that such
a procedure would impair the Senate's ability to make an independent
final judgment.(18)
---------------------------------------------------------------------------
18. Roudebush v Hartke, 405 U.S. 15 (1972). The Supreme Court cited the
action of the Senate in seating Senator Hartke, without
prejudice to the outcome of the court case, as a basis for
declaring the controversy not moot.
Generally, where state law provides a remedy for
maladministration of an election, the state may retain
jurisdiction over election results until the remedial process
has been completed, although the House or Senate may make its
own independent judgment (see for example Sec. Sec. 8.1-8.4,
infra, and the cases cited therein). For an occasion where a
state court ruled to the contrary, see Sec. 5.2, infra.
---------------------------------------------------------------------------
Sec. 5.2 A Member who had been defeated in a primary election inserted
in the Record a state court opinion that the court lacked
jurisdiction to pass upon that Member's allegations of election
irregularities since the House had exclusive jurisdiction to decide
such questions and to declare the rightful nominee.
On Sept. 23, 1970,(19) Mr. Byron G. Rogers, of Colorado,
addressed the House in order to insert in the Record a recent opinion
of the supreme court of Colorado, holding that the court had no
jurisdiction to consider Mr. Rogers' allegations of election
irregularities in a primary election where he had been defeated, and
that the House had
[[Page 863]]
exclusive jurisdiction to decide such questions.
---------------------------------------------------------------------------
19. 116 Cong. Rec. 33320, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: The matter was later investigated by the
Committee on House Administration, which did not report to the House
thereon. The latter committee found that while there were
irregularities in the election, there was no practical way of
ascertaining whether they would have changed the result of the primary
election.(20)
---------------------------------------------------------------------------
20. The opinion inserted by Mr. Rogers was later officially reported as
Rogers v Barnes, 172 Colo. 550, 474 P.2d 610 (1970). Compare
Roudebush v Hartke, 405 U.S. 15 (1972), cited at Sec. 5.1,
supra.
---------------------------------------------------------------------------
Sec. 5.3 To a bill vesting in federal courts jurisdiction over certain
voting rights actions, amendments prohibiting preemption of
jurisdiction of the state courts over elections in general were
held to be germane.
On June 17, 1957, the House was considering H.R. 6127, a civil
rights measure. The bill provided that jurisdiction should be vested in
federal district courts over certain civil actions for protection of
voting rights. An amendment was offered to prohibit preemption of
jurisdiction of the state courts over elections. Chairman Aime J.
Forand, of Rhode Island, held that the amendment was germane, since it
was offered to sections of the bill that have to do with voting, and
therefore with elections.(1)
---------------------------------------------------------------------------
1. 103 Cong. Rec. 9394, 9395, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
House Construction of State Election Statutes
Sec. 5.4 In judging the elections of its Members, the House may
construe the language of the applicable state election laws and
determine the effect of any violations thereof on such an
election.(2)
---------------------------------------------------------------------------
2. See 78 Cong. Rec. 8921, 73d Cong. 2d Sess., May 25, 1934. For
detailed analysis, see Sec. 7.1, infra, and the precedents
referred to therein.
---------------------------------------------------------------------------
Sec. 5.5 Where a territorial act passed by Congress required the
Governor of the territory to deliver the certificate of election to
the Delegate but allowed the territorial legislature power over
election laws, a statute of the territory requiring the secretary
thereof to declare and certify election results was found
controlling in an election contest.(3)
---------------------------------------------------------------------------
3. Unlike the states, which have power under U.S. Const. art. I,
Sec. 4, clause 1 to regulate elections by law, any power of
territories and of the seat of government over elections must
be delegated by congressional enactment.
---------------------------------------------------------------------------
[[Page 864]]
On May 21, 1936, the Committee on Elections No. 2 submitted House
Resolution 521 in the contested election case of McCandless v King for
the seat of the Delegate from the territory of Hawaii.(4)
The proposed resolution declared Mr. Samuel Wilder King to be duly
elected as Delegate. The report analyzed the Hawaiian Organic Act,
passed by Congress, to determine whether the contest had been filed
within the proper time. The act required the territorial Governor to
deliver a certificate of election to the Delegate, but also provided
that the election be conducted in conformity with the general laws of
the territory and permitted its legislature to amend the election laws.
---------------------------------------------------------------------------
4. 80 Cong. Rec. 7765, 74th Cong. 2d Sess. The House passed the
resolution, without debate, on June 2, 1936, 80 Cong. Rec.
8705, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The committee found that a law of the Hawaiian territorial
legislature which required the secretary of the territory to declare
and certify election results was controlling as to the question of
whether the contestant had filed notice of contest within the time
required by law.(5)
---------------------------------------------------------------------------
5. H. Rept. No. 2736, Committee on Elections No. 2, 74th Cong. 2d
Sess.
---------------------------------------------------------------------------
State Action Denying Voting Rights
Sec. 5.6 Where the right of an entire state delegation to take the oath
was challenged by a citizens group which claimed systematic denial
of voting rights and which held citizen elections, the House
affirmed the right of the original delegation to the seats in
question.
On Jan. 4, 1965, objection was made to the administration of the
oath to the entire delegation of Members-elect from Mississippi. The
House then adopted a resolution (H. Res. 1) authorizing those Members-
elect to be sworn in.(6)
---------------------------------------------------------------------------
6. 111 Cong. Rec. 18-20, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
The challenge to the administration of the oath to the Members from
Mississippi was based on the constitutional argument that systematic
denial of Negro voting rights throughout the state invalidated the
entire election. The citizens group challenging the election had held
its own election to choose five representatives.
A formal election contest was instituted but was dismissed by the
House on Sept. 17, 1965.(7)
---------------------------------------------------------------------------
7. 111 Cong. Rec. 24291, 89th Cong. 1st Sess. For other materials on
the challenge, see pp. 18691 (July 29, 1965), 22364 (Aug. 31,
1965), 24263-92 (Sept. 17, 1965).
[[Page 865]]
Sec. 5.7 The House refused to overturn an election in a state with a
``county unit'' primary election system, under which less populous
counties were entitled to a disproportionately larger electoral
vote than other counties in the same state.
On Apr. 27, 1948, the House adopted without debate House Resolution
553, dismissing the Georgia election contest of Lowe v
Davis.(8)
---------------------------------------------------------------------------
8. 94 Cong. Rec. 4902, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: The House thereby refused to invalidate the
Georgia ``county unit'' system for primaries, requiring use of county
electoral votes rather than popular votes for choosing nominees. Under
that system each candidate was required to receive a majority of county
unit votes for nomination, and unit votes were allotted to less
populous counties rather than strictly on the basis of
population.(9)
---------------------------------------------------------------------------
9. See the elections committee report in the case, H. Rept. No. 1823,
80th Cong. 2d Sess. The Supreme Court later invalidated the use
of the ``county unit'' system. Gray v Sanders, 372 U.S. 368
(1963).
---------------------------------------------------------------------------
CHAPTER 8
Elections and Election Campaigns
B. TIME, PLACE, AND REGULATION OF ELECTIONS
Sec. 6. Elector Qualifications; Registration
The original Constitution and Bill of Rights left the determination
of qualifications required of electors to vote for Members of the House
entirely up to the states.(10) At the time of the adoption
of the Constitution, qualifications based on status, such as property
ownership, were a widespread prerequisite to the exercise of voting
rights. Since that time, the power of the states to prescribe the
qualifications of electors for Representatives and for Senators
(11) has been severely proscribed by constitutional
amendments extending the franchise to U.S. citizens without regard to
such matters as race, color, or sex,(12) and by federal
legislation protecting the integrity of the congressional electoral
process.(13)
---------------------------------------------------------------------------
10. U.S. Const. art. I, Sec. 2, clause 1. See also House Rules and
Manual Sec. Sec. 6, 7 (1973).
11. The 17th amendment altered the Constitution in directing the
election of Senators by the people of the state, rather than by
the state legislatures.
12. See the 15th amendment (race, color, previous condition of
servitude); the 19th amendment (sex); the 24th amendment (poll
tax); the 26th amendment (age).
13. For a summary of such legislation, see Constitution of the United
States of America: Analysis and Interpretation, S. Doc. No. 92-
82, 108-111, 92d Cong. 2d Sess. (comments to U.S. Const. art.
I, Sec. 4, clause 1).
---------------------------------------------------------------------------
[[Page 866]]
The first step in the voting process for electors is voting
registration. Although registration is primarily regulated by the
states, congressional authority to preempt state regulation extends to
the registration process.(14) Civil rights legislation
enacted by Congress has provided for federal registrars and other
procedures to insure that citizens qualified under the Constitution are
not denied voting participation by rejection of registration
applications on an arbitrary or discriminatory basis.(15) In
judging election contests, the House or Senate may have occasion to
construe state laws regulating registration and the effect of
violations thereof.(16)
---------------------------------------------------------------------------
14. See United States v Louisiana, 225 F Supp 353 (D. La. 1963), aff'd,
380 U.S. 145; Katzenbach v Original Knights of Ku Klux Klan,
250 F Supp 330 (D. La. 1965).
15. See, for example, 42 USC Sec. 1971 (a) (2), (e). See also South
Carolina v Katzenbach, 383 U.S. 301 (1966), construing
registration provisions of the Voting Rights Act of 1965. For
early federal court approval of federal registrars, see In re
Sundry Citizens, 23 F Cas. 13 (Ohio 1878).
16. See Sec. Sec. 6.1, 6.2, infra.
---------------------------------------------------------------------------
The states may prescribe reasonable qualifications for voting in
congressional elections as long as the requirements do not contravene
constitutional provisions or conflict with preemptive federal
legislation enacted pursuant to law.(17) Residency
requirements, absence of a previous criminal record, and an objective
requirement of good citizenship are examples of allowable voter
qualifications.(18)
---------------------------------------------------------------------------
17. See Harman v Forssenius, 380 U.S. 528 (1965); Davis v Schnell, 81 F
Supp 872 (D. Ala. 1949), aff'd, 336 U.S. 933.
Although the Constitution itself does not confer federal
voting rights on any person or class of persons, Kuffman v
Osser, 321 F Supp 327 (D. Pa. 1971), the electors do not owe
their right to vote to a state law prescribing qualifications
for the most numerous branch of their own legislature in any
sense which makes the exercise of the right depend exclusively
on the state law. Ex parte Yarbrough, 110 U.S. 663 (1884);
United States v Mosley, 238 U.S. 883 (1915).
18. Lassiter v Northampton County Board of Elections, 360 U.S. 45
(1959).
In relation to Presidential elections, Congress abolished
state durational residency requirements and provided for
absentee balloting. See United States v Arizona, 400 U.S. 112
(1970).
---------------------------------------------------------------------------
The first voter qualification which was prohibited from
consideration by the states was race,
[[Page 867]]
color, or previous condition of servitude; the 15th amendment provided
not only that the right of citizens to vote should not be denied on
those grounds but also granted Congress the power to enforce the
amendment by appropriate legislation. Race as a substantive
qualification in elections and primaries,(19) as well as
procedural requirements which effectively handicap the exercise of the
franchise on account of race, were barred.(20)
---------------------------------------------------------------------------
19. The same test to determine discrimination or abridgement of right
to vote as applied in a general election should be applied to a
primary election, and a resolution of a political party
limiting membership to white citizens where membership in a
political party was an essential qualification was an
unconstitutional provision. Smith v Allwright, 321 U.S. 649
(1944), rehearing denied, 322 U.S. 769. For Congress' authority
over primaries, see Sec. 7, infra.
20. See Wayne v Wilson, 307 U.S. 268 (1939).
---------------------------------------------------------------------------
Under the 15th amendment, Congress may legislate to protect the
suffrage in all elections, both state and federal, against state
interference based on race, color, or previous condition of
servitude,(1) and under the 14th amendment Congress may act
to prevent state interference with any citizen's voting
rights.(2) Under article I, section 4, clause 1 of the
Constitution, Congress can legislate against private as well as state
interference but only in relation to federal elections.(3)
---------------------------------------------------------------------------
1. See James v Bowman, 190 U.S. 127 (1903); United States v Reese, 92
U.S. 214 (1876); Larche v Hannah, 177 F Supp 816 (D. La. 1959),
reversed on other grounds, 263 U.S. 420, rehearing denied, 364
U.S. 855; South Carolina v Katzenbach, 383 U.S. 301 (1939).
2. Katzenbach v Morgan, 384 U.S. 641 (1966); Oregon v Mitchell, 400
U.S. 112 (1970).
3. See Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Yarbrough, 110
U.S. 651 (1884); United States v Classic, 313 U.S. 299 (1941).
---------------------------------------------------------------------------
Congress has enacted a number of statutes, dating from 1870 to the
present, providing a variety of remedies against interference with
voting rights.(4) Some of those statutes have provided for
federal officials to actively supervise congressional elections in the
[[Page 868]]
states and directed suspension of otherwise permissible voting tests,
such as literacy requirements,(5) which are designed and
administered so as to deny voting rights in a discriminatory
way.(6)
---------------------------------------------------------------------------
4. For early legislation, see Carr, Federal Protection of Civil
Rights: Quest for a Sword (Ithaca, 1947). Later acts were the
Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634;
Voting Rights Act of 1960, Pub. L. No. 86-449, 74 Stat. 86;
Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241;
Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437;
Civil Rights Act of 1968, Pub. L. No. 90-284, 82 Stat. 73;
Civil Rights Act of 1970, Pub. L. No. 91-285, 84 Stat. 314.
5. For permissible literacy requirements, see Lassiter v Northampton
County Board of Elections, 360 U.S. 45 (1959); Trudeau v
Barnes, 65 F2d 563 (5th Cir. 1933), cert. denied, 290 U.S. 659.
6. For construction of federal legislation suspending literacy tests,
see Katzenbach v Morgan, 384 U.S. 641 (1966); South Carolina v
Katzenbach, 383 U.S. 301 (1966); Gaston County v United States,
395 U.S. 285 (1969). See also Davis v Schnell, 81 F Supp 872
(D. Ala. 1949), aff'd, 336 U.S. 933; Louisiana v United States,
380 U.S. 145 (1965).
A ``grandfather clause'' exemption from an educational
qualification prescribed by a state constitution is
unconstitutional. Guinn v United States, 238 U.S. 347 (1915);
Myers v Anderson, 238 U.S. 368 (1915).
---------------------------------------------------------------------------
On occasion, titles to seats in the House have been challenged for
reason of denial of voting rights, either through a systematic state
pattern (7) or through private action by either the
candidate or party officials.(8) On many such occasions,
challenges and contests have been dismissed or denied due to the
difficulty in obtaining substantial evidence of actual abridgment of
voting rights or of a connection between the challenged Member and the
alleged abridgment.
---------------------------------------------------------------------------
7. See Sec. Sec. 5.6, 5.7, supra.
8. See Sec. Sec. 6.3, 6.5. infra.
---------------------------------------------------------------------------
Other state-ordered voter qualifications have been removed by way
of amendment of the federal Constitution. The right to vote regardless
of sex was established in 1919 with the adoption of the 19th amendment.
The right of all citizens to vote without paying a poll tax was
affirmed through the adoption of the 24th amendment, following the
passage by the House but not by the Senate of a bill in the 80th
Congress to make unlawful a poll tax in any federal
election.(9)
---------------------------------------------------------------------------
9. See Sec. 6.7, infra.
---------------------------------------------------------------------------
The right of citizens to vote has been set by the 26th amendment of
the Constitution at 18 years of age or older. Prior to the adoption of
this amendment, Congress had amended the Voting Rights Act in 1970 to
authorize 18-year-olds to vote in all elections, both state and
federal.(10) The Supreme Court held that although Congress
did have authority under the Constitution to fix the age of voters in
federal elections,(11) Con
[[Page 869]]
gress had no power to fix an age requirement for voting in state
elections.(12)
---------------------------------------------------------------------------
10. See Pub. L. No. 91-285, 84 Stat. 314.
11. One Justice was of the opinion that power was conferred on Congress
by U.S. Const. art. I, Sec. 4, clause 1, and four Justices were
of the opinion that power was conferred on Congress by the
enforcement clause of the 14th amendment, Sec. 5. United States
v Arizona, 400 U.S. 112 (1970), rehearing denied, 401 U.S. 903.
12. The Court held that the 10th amendment to the Constitution reserved
to the states the power to establish voter age qualifications
in state and local elections. Oregon v Mitchell, 400 U.S. 112
(1970). -------------------
---------------------------------------------------------------------------
Voter Registration
Sec. 6.1 Violations of a state's registration and election laws
prohibiting transportation of voters to places of registration,
providing qualifications for registrars, confining registration to
certain hours, and requiring detailed registration lists were held
not to affect the results of an election, and therefore did not
nullify the election.
On June 19, 1948, the House adopted without debate House Resolution
692, dismissing an election contest:
Resolved, That the election contest of David J. Wilson,
contestant, against Walter K. Granger, contestee, First
Congressional District of Utah, be dismissed and that the said
Walter K. Granger is entitled to his seat as a Representative of
said district and State.(13)
---------------------------------------------------------------------------
13. 94 Cong. Rec. 9184, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
The resolution was adopted pursuant to a report of the Committee on
House Administration recommending the contest be dismissed; the
committee had determined that violations of Utah's registration laws
applicable to congressional elections did not affect the election
results and did not require the voiding of the election.(14)
The registration laws in issue prohibited transportation of voters to
places of registration, required qualifications of registrars, confined
registration to particular hours, and mandated detailed registration
lists.
---------------------------------------------------------------------------
14. H. Rept. No. 2418, submitted June 17, 1948, 94 Cong. Rec. 8964,
80th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 6.2 To provide a basis for the rejection of votes allegedly given
by illegal registrants, challenge must have been made at the time
of registration.
On Mar. 19, 1952, the House adopted without debate House Resolution
580, affirming the right of a Member-elect to his seat:
Resolved, That Ernest Greenwood was duly elected as
Representative
[[Page 870]]
from the First Congressional District of New York to the Eighty-
second Congress and is entitled to his seat.(15)
---------------------------------------------------------------------------
15. 98 Cong. Rec. 2517, 82d Cong. 2d Sess.
The resolution was adopted pursuant to a report of the Committee on
House Administration submitted on the same day. The committee had ruled
that votes claimed to have been given by illegal and fictitious
registrants in congressional elections must have been challenged at the
time of registration. Where the contestant files petitions to annul the
votes of such registrants, he must show that he took testimony from
those registrants and that they voted for his opponent.(16)
---------------------------------------------------------------------------
16. H. Rept. No. 1599, 98 Cong. Rec. 2545, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Challenges to Seats for Denial of Voting Rights
Sec. 6.3 Where the House by resolution has authorized the Committee on
House Administration to investigate the question of the final right
of a Member to his seat, the committee will not consider charges
against party officials that they conspired to nullify the will of
the voters, where there is no evidence to connect the Member to
such conspiracy.
On Sept. 8, 1959, the Committee on House Administration submitted a
report of an investigation of the final right of a Member to his
seat.(17) The report stated in part that the committee had
refused to consider charges against Arkansas party officials that they
had conspired to nullify the will of the voters, where no evidence was
tendered to connect the challenged Member, Mr. Dale Alford, with any
such conspiracy.
---------------------------------------------------------------------------
17. H. Rept. No. 1172, 105 Cong. Rec. 18610, 86th Cong. 1st Sess. The
House adopted H. Res. 380, affirming the right to a seat of Mr.
Alford (Ark.), id. at p. 18611.
---------------------------------------------------------------------------
Sec. 6.4 Where the right of an entire state delegation to take the oath
was challenged by reason of systematic denial of voting rights, the
challenge was treated as a contested election case and later
dismissed by the House.
On Jan. 4, 1965, the convening day of the 89th Congress, a
challenge was made to the administration of the oath to all the
Members-elect from Mississippi. Those Members-elect stepped aside as
the oath was administered to the other Members.(18) The
House then authorized the Members-elect from Mississippi to be sworn in
after Mr. Carl Albert, of Okla
[[Page 871]]
homa, stated that ``Any question involving the validity of the
regularity of the election of the Members in question is one which
should be dealt with under the laws governing contested elections.''
(19)
---------------------------------------------------------------------------
18. 111 Cong. Rec. 18, 19, 89th Cong.
19. Id. at pp. 19, 20.
---------------------------------------------------------------------------
Election contest proceedings were then instituted,(20)
and the House later dismissed the contest.(1)
---------------------------------------------------------------------------
20. See 111 Cong. Rec. 24263-92, 89th Cong. 1st Sess., Sept. 17, 1965;
111 Cong. Rec. 22364, 89th Cong. 1st Sess., Aug. 31, 1965; and
111 Cong. Rec. 18691, 89th Cong. 1st Sess., July 29, 1965.
1. One of the sitting Members whose seat was being contested voted on
the resolution dismissing the contest and then withdrew his
vote and was recorded as present. He stated that he felt he had
the privilege of voting on the resolution since in hearings
before the elections committee it was agreed that the election
contest was an attack upon the seats of the State of
Mississippi rather than against the individual Members-elect.
111 Cong. Rec. 24292, 89th Cong. 1st Sess., Sept. 17, 1965.
---------------------------------------------------------------------------
Sec. 6.5 Exclusion proceedings were sought in the 80th Congress against
a Senator-elect charged with conspiracy to prevent voters from
participating in sensational elections.(2)
---------------------------------------------------------------------------
2. See Sec. 7.8, infra, for Senate expulsion proceedings in relation
to a candidate's illegal control of election machinery and
destruction of opposing ballots.
---------------------------------------------------------------------------
On Jan. 4, 1947, at the convening of the 80th Congress, the right
of Senator-elect Theodore G. Bilbo, of Mississippi, to be sworn in and
to take a seat in the Senate was challenged by the presentation of
Senate Resolution 1, which read:
Whereas the Special Committee To Investigate Senatorial
Campaign Expenditures, 1946, has conducted an investigation into
the senatorial election in Mississippi in 1946, which investigation
indicates that Theodore G. Bilbo may be guilty of violating the
Constitution of the United States, the statutes of the United
States, and his oath of office as a Senator of the United States in
that he is alleged to have conspired to prevent citizens of the
United States from exercising their constitutional rights to
participate in the said election; and that he is alleged to have
committed violations of Public Law 252, Seventy-sixth Congress,
commonly known as the Hatch Act; and
Whereas the Special Committee To Investigate the National
Defense Program has completed an inquiry into certain transactions
between Theodore G. Bilbo and various war contractors and has found
officially that the said Bilbo, ``in return for the aid he had
given certain war contractors and others before Federal
departments, solicited and received political contributions,
accepted personal compensation, gifts, and services, and solicited
and accepted substantial amounts of money
[[Page 872]]
for a personal charity administered solely by him'' . . . and
``that by these transactions Senator Bilbo misused his high office
and violated certain Federal statutes''; and
Whereas the evidence adduced before the said committees
indicates that the credentials for a seat in the Senate presented
by the said Theodore G. Bilbo are tainted with fraud and
corruption; and that the seating of the said Bilbo would be
contrary to sound public policy, harmful to the dignity and honor
of the Senate, dangerous to the perpetuation of free Government and
the preservation of our constitutional liberties; Now, therefore,
be it
Resolved, That the claim of the said Theodore G. Bilbo to a
seat in the United States Senate is hereby referred to the
Committee on Rules and Administration with instructions to grant
such further hearing to the said Theodore G. Bilbo on the matters
adduced before the Special Committee To Investigate Senatorial
Campaign Expenditures, 1946, and the Special Committee To
Investigate the National Defense Program and to take such further
evidence as shall be proper in the premises, and to report to the
Senate at the earliest possible date; that until the coming in of
the report of said committee, and until the final action of the
Senate thereon, the said Theodore G. Bilbo be, and he is hereby,
denied a seat in the United States Senate.(3)
---------------------------------------------------------------------------
3. 93 Cong. Rec. 7, 8, 80th Cong. 1st Sess., Jan. 3, 1947.
---------------------------------------------------------------------------
After debate, the Senate laid on the table the resolution and the
question as to whether the Senator-elect was to be sworn in, without
prejudice to his rights, since he had recently undergone an operation
and required further medical care. Senator-elect Bilbo later died in
the first session of the 80th Congress, before any further
consideration of his right to be sworn in.(4)
---------------------------------------------------------------------------
4. 93 Cong. Rec. 109, 80th Cong. 1st Sess., Jan. 4, 1947. For the
announcement of Nov. 17, 1947, concerning Theodore G. Bilbo's
death, see 93 Cong. Rec. 10569, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Poll Tax Requirements
Sec. 6.6 Members of the House were advised that an individual who
threatened to contest the elections of Members from states having
poll taxes had no legal standing to contest such elections.
On Feb. 14, 1945, Hatton W. Sumners, of Texas, Chairman of the
Committee on the Judiciary, addressed the House in relation to the
claim of a private citizen that he could contest the elections of 71
Members of the House of Representatives: Mr. Sumners inserted in the
Record a letter he had written to one such Member, advising him that
the citizen referred to had no standing to bring such election contests
Mr. Sumners advised Members to ignore the claim of the
citizen.(5)
---------------------------------------------------------------------------
5. 91 Cong. Rec. 1083, 1084, 79th Cong. 1st Sess.
For election contests initiated by petition of citizens,
see Ch. 9, infra.
---------------------------------------------------------------------------
[[Page 873]]
Sec. 6.7 The House under suspension of the rules passed a bill making
unlawful a requirement for the payment of a poll tax as a
prerequisite to voting in a primary or other election for national
officers, despite objections to its constitutionality.
On July 21, 1947, the House passed H.R. 29, rendering unlawful a
state poll tax as a prerequisite to voting in a primary or other
election for national officers.(6) The bill was passed by
the House under suspension of the rules despite a point of order that
the bill violated the U.S. Constitution, especially article I, section
2, which authorizes the states, not Congress, to set the qualifications
of electors for Representatives. Speaker Joseph W. Martin, of
Massachusetts, overruled the point of order on the grounds that the
Chair does not pass on the constitutionality of proposed legislation.
---------------------------------------------------------------------------
6. 93 Cong. Rec. 9552, 80th Cong. 1st Sess. For debate on the bill,
see pp. 9522-52.
---------------------------------------------------------------------------
The Senate rejected the bill, but a constitutional amendment with
the same purpose was later ratified (see Sec. 6.8, infra).
Sec. 6.8 While the Committee on House Administration has jurisdiction
over legislation relating to poll tax requirements for federal
elections, the Committee on the Judiciary has jurisdiction over
proposals to amend the Constitution relative to federal election
requirements.
On July 26, 1949,(7) Speaker Sam Rayburn, of Texas,
submitted to the House the question as to the engrossment and third
reading of H.R. 3199, the anti-poll tax bill. Mr. Robert Hale, of
Maine, arose to offer a motion to recommit the bill to the Committee on
House Administration with directions that it report the legislation
back to the House in the form of a joint resolution amending the
Constitution to make payment of poll taxes--as a qualification for
voting--illegal. The Speaker ruled that the language carried in the
motion to recommit was not germane to the bill since a constitutional
amendment would lie within the jurisdiction of the Committee on the
Judiciary and not the Committee on House Administration.
---------------------------------------------------------------------------
7. 95 Cong. Rec. 10247, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 6.9 In the 87th Congress, a Senate joint resolution proposing a
national monument was amended in the Senate
[[Page 874]]
by striking all after the resolving clause and inserting provisions
of a constitutional amendment abolishing the poll
tax.(8)
---------------------------------------------------------------------------
8. The Anti-Poll Tax Amendment was ratified by 38 states and became
effective Jan. 23, 1964. 110 Cong. Rec. 1077, 88th Cong. 2d
Sess. (see U.S. Const., 24th amendment).
---------------------------------------------------------------------------
On Mar. 27, 1962, the Senate was considering Senate Joint
Resolution 29, providing for the establishment of a national monument.
An amendment was offered to strike out all after the resolving clause
of the resolution and to insert the provisions of a constitutional
amendment abolishing the poll tax in the states. The Vice President
ruled that the joint resolution could be so amended; he also ruled that
only a majority vote was required for the adoption of a substitute,
although a two-thirds vote was required on the adoption of the
resolution as amended.(9)
---------------------------------------------------------------------------
9. 108 Cong. Rec. 5086, 87th Cong. 2d Sess. (Vice President Johnson
[Tex.]). The Senate proceeded to pass the amended resolution by
a two-thirds vote.
For the entire Senate debate on the amendment and the
method by which it was being offered, see pp. 5072-105.
---------------------------------------------------------------------------
The House passed the measure under a motion to suspend the rules on
Aug. 27, 1962.(10)
---------------------------------------------------------------------------
10. 108 Cong. Rec. 17670, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
Residency Requirements
Sec. 6.10 An elections committee invalidated votes cast by workers who
were only temporarily in an election district, but found that those
votes, though disregarded, would not affect the outcome of the
election.
On Mar. 11, 1940, Elections Committee No. 3 submitted Report No.
1722 in an elections case, recommending that the seated Member, Mr.
Harrington, be declared entitled to his seat:
Resolved, That Albert F. Swanson is not entitled to a seat in
the House of Representatives in the Seventy-sixth Congress from the
Ninth Congressional District of Iowa.
Resolved, That Vincent F. Harrington is entitled to a seat in
the House of Representatives in the Seventy-sixth Congress from the
Ninth Congressional District of Iowa.(11)
---------------------------------------------------------------------------
11. 86 Cong. Rec. 2662, 76th Cong. 3d Sess. (H. Res. 419).
The resolution was agreed to, the committee having determined that,
although certain votes cast by workers temporarily present in the
election district were invalid, the rejection of those votes would not
change the result of the election.
Sec. 6.11 A contestant who alleges that certain voters in an
[[Page 875]]
election did not reside in the precincts where registered must
present evidence of the claimed irregularities sufficient to
overcome the presumption that the election officials properly
performed their duties.
On Mar. 19, 1952, the House adopted without debate House Resolution
580, affirming the right of a Member-elect to a seat:
Resolved, That Ernest Greenwood was duly elected as
Representative from the First Congressional District of New York to
the Eighty-second Congress and is entitled to his
seat.(12)
---------------------------------------------------------------------------
12. 98 Cong. Rec. 2517, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
The resolution was adopted pursuant to a report of the Committee on
House Administration submitted on the same day. The committee found
that votes claimed to have been given by illegal registrants, not
residing in the precincts where registered, must have been challenged
at the time they registered or voted. The committee also invoked the
general rule that the contestant must produce evidence in such cases,
through testimony and documents, proving the fact of nonresidence in
the county for the statutory period of time, to overcome the
presumption that election officials properly perform their
duties.(13)
---------------------------------------------------------------------------
13. H. Rept. No. 1599 (98 Cong. Rec. 2545, 82d Cong. 2d Sess.). The
committee had also found that a local court opinion was
controlling as to when residence commenced to run, in the
absence of challenge to a registrant at the time of
registration or voting.
---------------------------------------------------------------------------
Federal Protection of Voting Rights
Sec. 6.12 In the 89th Congress, the President delivered a special
message on voting rights to a joint session and submitted to
Congress proposed legislation which was enacted into law as the
Voting Rights Act of 1965.
On Mar. 15, 1965, the House and Senate met in joint session,
pursuant to House Concurrent Resolution 117, to hear an address by the
President of the United States.(14) The President's message
was directed to denial of voting rights on racial grounds and urged the
passage of federal civil rights legislation to protect those
rights.(15)
---------------------------------------------------------------------------
14. 111 Cong. Rec. 5058, 89th Cong. 1st Sess.
15. Id. at pp. 5058-63. The President submitted a legislative proposal
for voting rights legislation which became H.R. 6400.
---------------------------------------------------------------------------
The legislation suggested by the President led to the passage by
Congress of the Voting Rights Act of 1965, the bill being signed by the
President at the Capitol on
[[Page 876]]
Aug. 6, 1965.(16) In 1966, the act was upheld as
constitutional by the U.S. Supreme Court.(17)
---------------------------------------------------------------------------
16. On Aug. 6, 1965, the Senate stood in recess in order to receive the
President of the United States. When the Senate reassembled,
there was ordered to be printed in the Congressional Record the
proceedings conducted at noon on the same day, when the
President had delivered a message in the Rotunda of the Capitol
and then retired to the President's Room in the Capitol in
order to sign into law the Voting Rights Act of 1965. 111 Cong.
Rec. 19649, 19650, 89th Cong. 1st Sess. For the Voting Rights
Act of 1965, see Pub. L. No. 89-110, 79 Stat. 437. For
codification see 42 USC Sec. Sec. 1971 et seq.
17. In upholding the validity of the 1965 Voting Rights Act in
Katzenbach v Morgan, 384 U.S. 641 (1966), the Supreme Court
cited congressional materials in finding a rational basis for
the act. See 111 Cong. Rec. 10676, 10680 (May 20, 1965), 15671
(July 9, 1965), 89th Cong. 1st Sess.
---------------------------------------------------------------------------
CHAPTER 8
Elections and Election Campaigns
B. TIME, PLACE, AND REGULATION OF ELECTIONS
Sec. 7. Time and Place; Procedure
Article I, section 4, clause 1 of the Constitution vests in the
states the power to prescribe the times, places, and manner of holding
elections for Senators and Representatives but allows Congress
preemptive authority to supersede or change any such state
regulation.(18) Although Congress has enacted extensive
legislation to protect the right to vote and to secure the process
against fraud, bribery and illegal conduct,(19) the actual
mechanism for conducting congressional elections has been left largely
to the states. And in judging the elections of their Members, the House
and the Senate defer in great part to state law regarding elections and
to state court opinions construing such election laws.(20)
---------------------------------------------------------------------------
18. See United States v Mumford, 16 F 223 (Cir. Ct. Va. 1883). For a
general discussion of the delineation of power over the
regulation of elections, see Sec. 5, supra.
19. For legislation protecting the right to vote, see Sec. 6, supra.
See Sec. Sec. 10-14, infra, as to federal regulation of
campaign practices.
20. See Sec. 7.1, infra.
---------------------------------------------------------------------------
The place where elections shall be held is for the states to
determine, qualified only by the requirement that Representatives must
be chosen in congressional districts which comply with statutory and
constitutional requirements.(1)
---------------------------------------------------------------------------
1. For districting requirements, see Sec. Sec. 3, 4, supra.
---------------------------------------------------------------------------
Poll facilities and functions of state officials at polling places
are a matter of state regulation, but the House and Senate must often
[[Page 877]]
examine such state laws in order to determine the validity of the
elections of their respective Members.(2) Unintentional
maladministration of elections and erroneous conduct by state election
officials at the polls do not usually invalidate elections;
(3) but where the conduct of election officials or of
candidates and their agents constitutes fraud or illegal control of
election machinery, the House or Senate may void an election and
exclude a Member-elect, or expel a Member charged with such
conduct.(4) And Congress has the power not only to enact
laws providing for the enforcement of state provisions ensuring
election regularity,(5) but also to establish federal
systems for the supervision of voting and election registration
procedures.(6)
---------------------------------------------------------------------------
2. See U.S. Const. art. I, Sec. 5, clause 1, vesting in the House and
the Senate the exclusive authority to judge the elections and
returns of their Members.
3. See Sec. Sec. 7.6, 7.7, infra.
Neither the due process clause of the Constitution nor the
requirement that Representatives be chosen by the people
guarantees a federal remedy for unintentional errors in the
administration of an election, where a petitioner has failed to
properly file for a fair and accurate state remedy which is
available. Powell v Power, 436 F2d 84 (2d Cir. 1970).
4. See Sec. 7.8, infra.
5. See In re Coy, 127 U.S. 731 (1888); United States v Gale, 109 U.S.
65 (1883); Ex parte Clarke, 100 U.S. 399 (1880); Ex parte
Siebold, 100 U.S. 371 (1880).
6. See Ex parte Yarbrough, 110 U.S. 651 (1884); Ex parte Siebold, 100
U.S. 371 (1880).
For a summary of recent federal voting rights legislation
establishing supervisory federal election officials. see
Sec. 6, supra.
---------------------------------------------------------------------------
The states may set general requirements for the placing of a
candidate's name on the ballot where such requirements do not amount to
qualifications in addition to those prescribed by the Constitution for
Senators and Representatives.(7)
---------------------------------------------------------------------------
7. A state may, for example, require a filing fee for a candidate.
Fowler v Adams, 315 F Supp 592 (D. Fla. 1970), appeal
dismissed, 400 U.S. 986. For the qualifications of Members-
elect to the House and Senate, and the lack of state power to
add to those requirements, see Ch. 7, supra.
---------------------------------------------------------------------------
Primaries to nominate candidates for congressional election are
regulated by state law, and both the House and Senate construe
individual state statutes to determine whether a Member-elect is
entitled to his seat where allegedly not nominated in compliance with
state law.(8)
---------------------------------------------------------------------------
8. See Sec. Sec. 7.3-7.5, infra.
---------------------------------------------------------------------------
The authority of Congress to supersede state election laws ex
[[Page 878]]
tends to primaries, since they are an integral part of the election
process.(9)
---------------------------------------------------------------------------
9. See United States v Classic, 313 U.S. 299 (1941); United States v
Wurzbach, 280 U.S. 396 (1930). Authority to the contrary,
Newberry v United States, 256 U.S. 232 (1921), was overruled by
the decisions
above. -------------------
---------------------------------------------------------------------------
State Authority to Prescribe Election Regulations
Sec. 7.1 Congress, in judging the elections of its Members, will follow
state law as to the time, place and manner of holding elections, in
the absence of a controlling federal law.(10)
---------------------------------------------------------------------------
10. For state authority generally, see U.S. Const. art. I, Sec. 4,
clause 1, discussed in Sec. 5, supra.
---------------------------------------------------------------------------
On Jan. 20, 1934, a committee on elections submitted House
Resolution 231 and Report 334, declaring null and void an election and
denying the seat to either of two contestants, one with a certificate
of election from the governor and one with a certificate of election
from a citizens' committee.
The resolution read as follows:
Resolved, That there was no valid election for Representative
in the House of Representatives of the Seventy-third Congress from
the Sixth Congressional District of the State of Louisiana on the
5th day of December, or the 27th day of December 1933, and that
neither Mrs. Bolivar E. Kemp nor J. Y. Sanders, Jr., is entitled to
a seat therein; and be it further
Resolved, That the Speaker communicate to the Governor of the
State of Louisiana that there is a vacancy in the representation of
the State in the Sixth Congressional District
thereof.(11)
---------------------------------------------------------------------------
11. 78 Cong. Rec. 1035, 73d Cong. 2d Sess. On Jan. 3, 1934, the House
had denied the right to be sworn to either contestant and had
referred the matter to the Elections Committee. 78 Cong. Rec.
11, 12, 73d Cong. 2d Sess.
---------------------------------------------------------------------------
The committee had determined (see Report 334), after examining the
relevant state law, that: the election to fill the vacancy, held
pursuant to the governor's proclamation, was invalid because held prior
to expiration of the preliminary time period required by state law;
although the election was invalid, a party committee could not itself
nominate a candidate and hold an election to choose him as a
Representative to Congress.
After debate,(12) the House adopted the resolution
declaring the election null and void.(13)
---------------------------------------------------------------------------
12. 78 Cong. Rec. 1108-11, 73d Cong. 2d Sess., Jan. 22, 1934; 78 Cong.
Rec. 1510-21, 73d Cong. 2d Sess., Jan. 29 1934.
13. 78 Cong. Rec. 1521, 73d Cong. 2d Sess., Jan. 29, 1934.
---------------------------------------------------------------------------
Primary Nominations
Sec. 7.2 On the recommendation of a committee, the House re
[[Page 879]]
fused to deprive a properly nominated Member of his seat for
irregularity in the nomination of his opponent.
On June 14, 1967, the Committee on House Administration submitted
Report No. 365 to accompany House Resolution 541, denying the petition
of a citizen that the seat of Mr. Fletcher Thompson, of Georgia, be
vacated, based upon the nomination of his opponent in alleged
contradiction of state law.(14)
---------------------------------------------------------------------------
14. 113 Cong. Rec. 15848, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
The House considered the resolution on July 11, 1967. Mr. Robert T.
Ashmore, of South Carolina, summarized the background of the election
contest and urged the adoption of the resolution, since no precedent
existed for depriving a seated Member of his seat for the irregular or
illegal nomination of his opponent. Mr. Charles E. Goodell, of New
York, stated that a Georgia court had dismissed a petition urging that
Mr. Thompson's opponent be enjoined from entering the race because of
his allegedly illegal nomination.(15)
---------------------------------------------------------------------------
15. 113 Cong. Rec. 18290, 18291, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
The House then agreed to the resolution dismissing the election
contest and denying the petition.(16)
---------------------------------------------------------------------------
16. Id. at p. 18291.
---------------------------------------------------------------------------
Sec. 7.3 Where state law requires the nomination of candidates by
direct primary elections called by party committees, but permits
such committees to themselves nominate candidates where the party
has no nominee for any position named in the call of the committee,
the nomination of a candidate by a committee which had not first
called a primary election is invalid.
On Jan. 20, 1934, a committee on elections submitted a report and
resolution recommending that the House declare an election null and
void, because the regular election had been held at an improper time
and because the contestant had been elected and certified by a party
committee in contravention of Louisiana law.(17) The House
adopted the resolution on Jan. 29, 1934, thereby determining that the
nomination of a candidate by a party committee which had not first
called a primary election was invalid, state law requiring nomination
of party candidates in direct primary elections, but allowing
committees to themselves nominate candidates where the party ``shall
have no nominee . . . for any position
[[Page 880]]
named in the call of the committee.''
---------------------------------------------------------------------------
17. 78 Cong. Rec. 1035, 73d Cong. 2d Sess. (H. Res. 231 and H. Rept.
No. 334).
---------------------------------------------------------------------------
The resolution read as follows:
Resolved, That there was no valid election for Representative
in the House of Representatives of the Seventy-third Congress from
the Sixth Congressional District of the State of Louisiana on the
5th day of December, or the 27th day of December 1933, and that
neither Mrs. Bolivar E. Kemp nor J. Y. Sanders, Jr., is entitled to
a seat therein; and be it further
Resolved, That the Speaker communicate to the Governor of the
State of Louisiana that there is a vacancy in the representation of
that State in the Sixth Congressional District
thereof.(18)
---------------------------------------------------------------------------
18. 78 Cong. Rec. 1521, 73d Cong. 2d Sess. For debate on the
resolution, see 78 Cong. Rec. 1108-11, Jan. 22, 1934; 78 Cong.
Rec. 1510-21, Jan. 29, 1934.
---------------------------------------------------------------------------
Sec. 7.4 The House refused to overturn an election in a state with a
``county unit'' primary election system, where less populous
counties were entitled to a disproportionately large electoral vote
for nominees.
On Apr. 27, 1948, the House adopted without debate House Resolution
553, dismissing the Georgia election contest of Lowe v Davis:
Resolved, That the election contest of Wyman C. Lowe,
contestee, against James C. Davis, contestee, Fifth Congressional
District of Georgia, be dismissed and that the said James C. Davis
is entitled to his seat as a Representative of said District and
State.(19)
---------------------------------------------------------------------------
19. 94 Cong. Rec. 4902, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: The House thereby refused to invalidate the
Georgia ``county unit'' system for primaries, requiring use of county
electoral votes rather than popular votes for choosing nominees. Under
the system each candidate was required to receive a majority of county
unit votes for nomination, and unit votes were allotted in favor of
less populous counties rather than strictly by
population.(20)
---------------------------------------------------------------------------
20. See the elections committee report in the case, H. Rept. No. 1823,
80th Cong. 2d Sess. The Supreme Court later invalidated the use
of the ``county unit'' system. Gray v Sanders, 372 U.S. 368
(1963).
---------------------------------------------------------------------------
Sec. 7.5 Where a Senator was elected to a full six-year term by a
``write-in'' vote, following the death of his predecessor at a time
too late for a new nominating primary, he announced his resignation
to permit nomination of a candidate in a regular primary election
in which he would be a candidate.
On Mar. 6, 1956,(1) Senator James Strom Thurmond, of
South
[[Page 881]]
Carolina, inserted in the Record an announcement he had made in his
home state on the subject of his resignation from the Senate. He had
been elected by a ``write-in'' vote at a general election held two
months after the death of his predecessor in the Senate. He had pledged
to the people of his state that he would resign after election to the
Senate by a write-in vote to permit the nomination of a Senator in a
regular primary election. Mr. Thurmond announced his candidacy for the
unexpired term created by the vacancy.
---------------------------------------------------------------------------
1. 102 Cong. Rec. 3991, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Conduct of Poll Officials
Sec. 7.6 Statutory functions of election and poll officials are
directory in nature, and errors in election administration at the
polls, absent fraud, do not normally invalidate ballots or
elections.
In ruling on election contests, House election committees have
followed the general rule that violations by state poll and election
officials of their functions under state statutes do not vitiate
ballots or void elections, in the absence of fraud, since laws
prescribing the duties of the officials are directory in
nature.(2) Committees have determined that failure to
provide at the polls proper instruments to mark ballots do not
invalidate ballots;(3) that failure of precinct or poll
clerks to initial ballots is not a crucial error;(\4\) that
distribution of stickers at polling places to be used on ballots is
allowable, where state law is uncertain as to sticker votes but the
state executive and judiciary permit their use;(5) and that
violation of state laws regarding poll procedure and disposition of
absentee ballots, envelopes and applications is not fatal to the
validity of the absentee ballots.(6)
---------------------------------------------------------------------------
2. Laws directing the manner in which ballots are to be marked are
mandatory and noncompliance therewith may invalidate ballots
(see Sec. 8.11, infra).
3. Report No. 513, submitted June 13, 1961, 87th Cong. 1st Sess.; see
107 Cong. Rec. 10186.
4. Id.
5. Report No. 1172, submitted Sept. 8, 1959, 86th Cong. 1st Sess.; see
105 Cong. Rec. 18610.
6. Report No. 2482, submitted Aug. 6, 1958, 85th Cong. 2d Sess.; see
104 Cong. Rec. 16481.
---------------------------------------------------------------------------
Voting Facilities
Sec. 7.7 The Senate refused to void an election where in various
counties no voting booths were provided, where there were no
officials present to aid incapacitated voters, and where question
[[Page 882]]
able ballots were destroyed by court order.(7)
On Mar. 23, 1954, the Senate rejected the following resolution,
reported from the Subcommittee on Privileges and Elections of the
Committee on Rules and Administration:
---------------------------------------------------------------------------
7. For House decisions on the validity of ballots, see Sec. 8.11,
infra.
---------------------------------------------------------------------------
Resolved, That it is the judgment of the Senate in the November
4, 1952, general election, in and for the State of New Mexico, no
person was elected as a Member of the Senate from that state, and
that a vacancy exists in the representation of that state in the
Senate.
The Secretary of the Senate is directed to submit a copy of
this resolution to the Governor of the State of New
Mexico.(8)
---------------------------------------------------------------------------
8. 100 Cong. Rec. 3732, 3733, 83d Cong. 2d Sess.
The resolution was predicated on the failure of New Mexico election
authorities to provide voting secrecy by providing booths in all
counties, the absence of officials to help blind and incapacitated
persons in voting, and the destruction of ballots by court
order.(9)
---------------------------------------------------------------------------
9. For debate on the resolution and remarks describing the errors and
irregularities in the New Mexico election, see 100 Cong. Rec.
3696-732, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
In urging the rejection of the resolution, Senator Walter F.
George, of Georgia, cited the rule laid down by the Senate in judging
past elections of its Members:
It will be noted that, according to this statement of the rule,
the irregularity or error does not of itself create a situation
where it must be shown that the result was not affected. In order
to set aside an election there must be not only proof of
irregularities and errors, but, in addition thereto, it must be
shown that such irregularities or errors did affect the
result.(10)
---------------------------------------------------------------------------
10. Id. at p. 3731.
---------------------------------------------------------------------------
Illegal Control of Election Machinery
Sec. 7.8 In the 77th Congress, the Senate failed to expel, by the
necessary two-thirds vote, a Senator whose election had been
challenged on various grounds, including his alleged illegal
control of election procedure.
On Jan. 3, 1941, at the convening of the 77th Congress, Mr. William
Langer, of North Dakota, took the oath of office, despite charges from
the citizens of the state recommending that he be denied a
congressional seat because of campaign fraud and of conduct involving
moral turpitude.(11)
---------------------------------------------------------------------------
11. 87 Cong. Rec. 3, 4, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
The petition against Mr. Langer alleged, among other charges, con
[[Page 883]]
trol of election machinery, casting of illegal election ballots, and
destruction of legal election ballots.(12)
---------------------------------------------------------------------------
12. 88 Cong. Rec. 2077-81, 77th Cong. 2d Sess., Mar. 9, 1942.
---------------------------------------------------------------------------
After determining that a two-thirds vote was necessary for
expulsion,(13) the Senate voted not to expel Senator
Langer.(14)
---------------------------------------------------------------------------
13. Id. at p. 3064.
14. Id. at p. 3065. See Sec. Sec. 6.3-6.5, supra, for instances in
which election results were challenged for control of election
machinery so as to deny voting rights.
---------------------------------------------------------------------------
CHAPTER 8
Elections and Election Campaigns
B. TIME, PLACE, AND REGULATION OF ELECTIONS
Sec. 8. Ballots; Recounts
The content, form, and disposition of ballots used in congressional
elections are generally regulated by state law. The only federal
requirement is that such ballots be written or printed, unless the
state has authorized the use of voting machines.(15) Federal
courts do not normally interfere with a state's prerogative to
establish standards for ballots and voting machines.(16)
---------------------------------------------------------------------------
15. 2 USC Sec. 9.
16. See Voorhes v Dempsey, 231 F Supp 975 (D. Conn. 1964), aff'd, 379
U.S. 648 (state requirement of party lever on voting machines
did not violate the 14th amendment where candidate listing and
voter choice not impaired); Voltaggio v Caputo, 210 F Supp 237
(D. N.J. 1962), appeal dismissed, 371 U.S. 232 (statute
directing manner of listing names on ballot not violative of
the 14th amendment; prohibiting independent candidate from
having slogan printed beneath name not violative of the U.S.
Constitution); Smith v Blackwell, 115 F2d 186 (4th Cir. 1940)
(federal court lacked power to set up election machinery by
order or to require certain form of ballot); Peterson v Sears,
238 F Supp 12 (D. Iowa 1964) (federal court lacked jurisdiction
to enjoin county auditors from unlocking voting machines).
---------------------------------------------------------------------------
In judging election contests, the House must on occasion gain
access to the ballots cast and determine whether they were properly
included within or omitted from the official count taken by state
authorities. House committees investigating contests, or investigating
election irregularities or fraud, may be granted authority to impound
or otherwise obtain ballots within the custody of state
officials.(17)
---------------------------------------------------------------------------
17. See Sec. Sec. 8.9, 8.10 for impoundment of ballot boxes and their
contents.
---------------------------------------------------------------------------
In judging the validity of ballots, the House (or its committee)
relies on state statutes regarding ballots and on state court opinions
construing those laws. The general rule is that laws regulating the
conduct of voters and the casting of votes are mandatory in nature and
violations thereof invali
[[Page 884]]
date the ballots cast, particularly where the voter's intent cannot be
clearly ascertained. Laws regulating the functions of election
officials are directory in nature, and in the absence of fraud the
officials' conduct will not vitiate ballots, even if they are subject
to criminal sanction for the breach complained of.(18)
---------------------------------------------------------------------------
18. See Sec. 8.11, infra.
---------------------------------------------------------------------------
Under most state election laws, a losing candidate may request a
recount of votes based on alleged irregularities and errors in the
administration of the election or the official count. In seeking a
remedy, the losing candidate should look first to the law of the state
where the election was held.(19) State courts have held that
where state law provides for a recount, the election process is not
final until a recount has been conducted or time to request one has
elapsed; therefore state courts may assume jurisdiction of
controversies over recounts without violating article I, section 5,
clause 1 of the Constitution, vesting final authority over elections
and returns in the House or Senate.(20)
---------------------------------------------------------------------------
19. Neither the due process clause of the Constitution nor the
requirement that Representatives be chosen by the people
guarantees a federal remedy for unintentional errors in the
administration of an election, where a petitioner has failed to
properly file for a fair and accurate state remedy which is
available. Powell v Power, 436 F2d 84 (2d Cir. 1970).
20. See Blackburn v Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967)
(cited at Sec. 8.3, infra); Wickersham v State Election Board,
357 P.2d 421 (Okla. 1960).
---------------------------------------------------------------------------
The House may order its own recount of the votes cast, without
regard to state proceedings, under article I, section 5, clause 1 of
the U.S. Constitution; (1) but it has not assumed authority
to order a state or local elections board to undertake a
recount,(2) although in some states the law may provide for
a state-ordered recount to be supervised by a congressional
committee.(3)
---------------------------------------------------------------------------
1. See Sec. 8.5, infra.
2. See Sec. 8.7, infra.
3. See Sec. 8.8, infra.
---------------------------------------------------------------------------
Collateral Reference
Bushel, State Control Over the Recount Process in Congressional
Elections, 23 Syracuse L. Rev. 139
(1972). -------------------
Power of State to Conduct Ballot Recount
Sec. 8.1 The Senate seated a Senator-elect without prejudice to the
outcome of a Supreme Court case where the Senator-elect was
challenging
[[Page 885]]
the constitutional power of his representative state to conduct a
recount of the ballots cast.
On Jan. 21, 1971, the Senate ordered ``that the oath may be
administered to Mr. Hartke, of Indiana, without prejudice to the
outcome of an appeal pending in the Supreme Court of the United States,
and without prejudice to the outcome of any recount that the Supreme
Court might order.'' (4)
---------------------------------------------------------------------------
4. 117 Cong. Rec. 6, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
Parlimentarian's Note: Senator Vance Hartke was challenging the
request of his opposing candidate that the state order a recount of the
votes cast. Senator Hartke claimed that the recount was barred by
article I, section 5 of the Constitution, delegating to the Senate the
sole power to judge the elections and returns of its Members. The
Supreme Court later held that the constitutional provision did not
prohibit a state recount, it being mere speculation to assume that such
a procedure would impair the Senate's ability to make an independent
final judgment.(5)
---------------------------------------------------------------------------
5. Roudebush v Harthe, 405 U.S. 15 (1972). The Supreme Court cited the
action of the Senate in seating Senator Hartke, without
prejudice to the outcome of the court case, as a basis for
declaring the controversy not moot.
---------------------------------------------------------------------------
State Proceedings as Affecting House Action
Sec. 8.2 The House rejected a challenge to the returns for a Member-
elect where state law appointed a state ballot commission as final
adjudicator.
On Jan. 5, 1937, Mr. John J. O'Connor, of New York, arose to object
to the administration of the oath to Arthur B. Jenks, Member-elect from
New Hampshire. Mr. O'Connor stated that the certificate of election of
Mr. Jenks ``may be impeached by certain facts which tend to show that
he has not received a plurality of the votes duly cast in that
congressional district.'' (6)
---------------------------------------------------------------------------
6. 81 Cong. Rec. 12, 13, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Bertrand H. Snell, of New York, arose to state that Mr. Jenks
had the right to be sworn in since he had a duly authenticated
certificate and since the laws of New Hampshire provided that a ballot
commission was the final adjudicator in regard to the objection
presented.(7) The House then adopted a resolution permitting
[[Page 886]]
Mr. Jenks to take the oath of office:
---------------------------------------------------------------------------
7. Id.
---------------------------------------------------------------------------
Resolved, That the gentleman from New Hampshire be now
permitted to take the oath of office.
Sec. 8.3 A special committee to investigate campaign expenditures
recommended by divided vote to the succeeding Congress that a
certified Member-elect not be seated pending determination of the
contest, based upon a preliminary state court determination that
not all split-ticket ballots had been counted.
On Jan. 3, 1967, after the adjournment sine die of the 89th
Congress, a special committee established in the 89th Congress to
investigate campaign expenditures filed a report on campaign
expenditures with the House (H. Rept. No. 89-2348), recommending to the
next Congress by a divided vote that a certified Member-elect from
Georgia, Benjamin B. Blackburn, not be seated pending the initiation of
an elections contest to resolve the matter. The committee so
recommended because of a preliminary state court determination in
Georgia that some split-ticket ballots had not been
counted.(8)
---------------------------------------------------------------------------
8. H. Rept. No. 2348, 89th Cong. 2d Sess.
For the final court decision, see Blackburn v Hall, 115 Ga.
App. 235, 154 S.E.2d 392 (1967). It is customary practice for
special elections committees to pass their findings on recent
elections to the next Congress for use in elections contest
determinations (see Sec. 14, infra).
---------------------------------------------------------------------------
On Jan. 10, 1967, at the convening of the 90th Congress, Mr.
Blackburn's right to be sworn was challenged. The House authorized him
to be sworn but referred the question of his final right to a seat to
the Committee on House Administration.(9)
---------------------------------------------------------------------------
9. 113 Cong. Rec. 14, 27, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 8.4 The Committee on House Administration expressly rejected a
requirement that a contestant show that he had no remedy under the
law of his state as determined by recourse to the highest state
court.
On Apr. 22, 1958, the Committee on House Administration submitted
its report in the election contest of Carter v LeCompte (Iowa); the
committee had ruled that where a contestant seeking a recount had
served copies of his notice of contest on state election officials but
had been advised by the state attorney general that state laws
contained no provision for contesting a House seat, the
[[Page 887]]
contestant need not seek recourse to the highest state court to
demonstrate that no remedy was available under state
law.(10)
---------------------------------------------------------------------------
10. H. Rept. No. 1626, 104 Cong. Rec. 6939, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
In so ruling, the committee expressly overruled a report of
Committee on Elections No. 3 in the 76th Congress, which found that the
House or its elections committee will only order a recount when the
contestant has shown that he has attempted recourse to the highest
court of that state to obtain a recount under state
procedures.(11)
---------------------------------------------------------------------------
11. H. Rept. No. 1722, 86 Cong. Rec. 2689, 76th Cong. 3d Sess., Mar.
11, 1940. The Committee on Elections No. 3, however, did
acknowledge that it had the discretion to order a recount
without reference to state proceedings, and proceeded to
consider the contestant's evidence of an informal recount which
he had conducted to determine whether the committee would be
justified in ordering a recount.
---------------------------------------------------------------------------
Congressional Recount
Sec. 8.5 Where a standing committee was authorized to investigate the
right of two contestants to a seat, the committee ordered a recount
of the ballots under its general investigatory power, rather than
under the applicable election contest statute.
On Jan. 3, 1961,(12) the House adopted a resolution
providing that the question of the right of either of two contestants
from Indiana, J. Edward Roush and George O. Chambers, to a seat be
referred to the Committee on House Administration, and that until that
committee had reported, neither the Member-elect nor the contestee
could take the oath of office.
---------------------------------------------------------------------------
12. 107 Cong. Rec. 23, 24, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
During its investigation, the Committee on House Administration
conducted a recount of all the ballots cast in the election. This was
done under its general power to investigate, not under the election
contest statutes.(13)
---------------------------------------------------------------------------
13. See H. Res. 339, 107 Cong. Rec. 10160, 87th Cong. 1st Sess., June
13, 1961.
---------------------------------------------------------------------------
When the House confirmed the right of Mr. Roush to the seat,
pursuant to the report of the committee, the House adopted a privileged
resolution providing for expenditures from the contingent fund to pay
compensation and certain expenses to Mr. Roush and to the contestant.
Neither was reimbursed for expenses pursuant to the election contest
statutes since the recount had been ordered by
[[Page 888]]
the Committee on House Administration under its investigative
power.(14)
---------------------------------------------------------------------------
14. See H. Res. 340, 107 Cong. Rec. 10160 (June 13, 1961) and 10391
(June 14, 1961), 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Congressional Power Over State Recount
Sec. 8.6 By resolution the House denied a joint application, by both
parties to an election dispute, petitioning the House to order the
state elections board to conduct a recount.
On Feb. 25, 1943,(15) the House adopted House Resolution
137, denying a joint application for an order of a recount in a
disputed election case. The resolution was offered in order to
establish a ``precedent for all time that jurisdiction of an alleged
contested election case cannot be conferred on the House or one of its
committees by any joint agreement of parties to an alleged election
contest unofficially or otherwise submitted.''
---------------------------------------------------------------------------
15. 89 Cong. Rec. 1324, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
The resolution read as follows:
Resolved, That the joint application for order of recount of
John B. Sullivan, contestant, against Louis E. Miller, contestee,
Eleventh District of Missouri, be not granted.
Sec. 8.7 An elections committee reported that there were no precedents
whereby the House had ordered a state or local board of elections
to take a recount.
On Feb. 25, 1943, the Committee on Elections No. 3 submitted a
report on a resolution denying a joint application for a recount in the
contested case of Sullivan v Miller, Eleventh District of Missouri. In
its report, the committee stated that it had found no precedents
wherein the House had ordered a state or local board of elections to
take a recount.(16)
---------------------------------------------------------------------------
16. H. Rept. No. 180, 89 Cong. Rec. 1353, 78th Cong. 1st Sess. For the
text of the resolution, see Sec. 8.6, supra.
---------------------------------------------------------------------------
Sec. 8.8 A recount of votes cast in an election for a House seat was
conducted by bipartisan teams and supervised by representatives of
a special House committee.
On Aug. 12, 1958,(17) the House agreed to House
Resolution 676, relative to the contested election case of Oliver v
Hale, First Congressional District of Maine:
---------------------------------------------------------------------------
17. 104 Cong. Rec. 17119, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
Resolved, That Robert Hale was duly elected as Representative
from the First Congressional District of the
[[Page 889]]
State of Maine in the 85th Congress and is entitled to his seat.
The resolution, which was reported from the Committee on House
Administration, was accompanied by House Report No. 2482. The committee
advised in the report that a special committee on elections had
traveled to Maine to conduct a recount of ballots pursuant to a Maine
state statute which provided for a recount to be conducted by
bipartisan teams and to be supervised by representatives of a special
House elections committee.
Congressional Impoundment of Ballots
Sec. 8.9 A resolution providing for the procurement of ballot boxes,
election returns, and election record books in an investigation of
a contested election case is presented as privileged.
On Jan. 7, 1930,(18) Mr. Willis G. Sears, of Nebraska,
offered as privileged House Resolution 113, by direction of the
Committee on Elections No. 3. The resolution related to the subpena of
witnesses and the procurement of ballot boxes, election returns, and
election record books in a committee investigation of a contested
election case. After a Member arose to object to the privileged status
of the resolution, Speaker Nicholas Longworth, of Ohio, ruled that the
resolution was a privileged matter.(19) The resolution read
as follows:
---------------------------------------------------------------------------
18. 72 Cong. Rec. 1187, 71st Cong. 2d Sess.
19. See also 3 Hinds' Precedents Sec. 2586, where a resolution offered
from the floor providing for an investigation of the election
of a Member was held to be privileged.
---------------------------------------------------------------------------
Resolved, That Jack R. Burke, county clerk, or one of his
deputies, Perry Robertson, county judge, or one of his deputies,
and Lamar Seeligson, district attorney, all of Bexar County, State
of Texas, are hereby ordered to appear before Elections Committee
No. 3, of the House of Representatives as required then and there
to testify before said committee in the contested-election case of
Harry M. Wurzbach, contestant, versus Augustus McCloskey,
contestee, now pending before said committee for investigation and
report; and that said county clerk or his deputy, said county judge
or his deputy, and said district attorney bring with them all the
election returns they and each of them have in their custody,
control, or/and possession, returned in the said county of Bexar,
Tex., at the general election held on November 6, 1928, and that
said county clerk also bring with him the election record book for
the said county of Bexar, Tex., showing the record of returns made
in the congressional election for the fourteenth congressional
district of Texas, for the said general election held on
[[Page 890]]
November 6, 1928, and to that end that the proper subpoenas be
issued to the Sergeant at Arms of this House commanding him to
summon all of said witnesses, and that said county clerk, said
county judge, and said district attorney to appear with said
election returns, as witnesses in said case, and said county clerk
with said election record book; and that the expense of said
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.
Sec. 8.10 Committees of the House and Senate investigating elections
may be authorized to impound and to examine the content of ballot
boxes following congressional elections.(20)
---------------------------------------------------------------------------
20. Similarly, a state law vesting custody of ballots in a state
official cannot prevail against a grand jury investigation of
violations of federal election statutes. In re Massey, 45 F 629
(D. Ark. 1890).
---------------------------------------------------------------------------
On several occasions, congressional committees have been authorized
to impound ballot boxes containing ballots cast in congressional
elections, either to resolve election contests or to investigate
charges of election irregularities.
On Jan. 19, 1931, for example, the Senate authorized by resolution
a special investigatory committee to impound and to examine the
contents of ballot boxes. The committee was investigating alleged
violations of the Corrupt Practices Act.(1)
---------------------------------------------------------------------------
1. S. Res. 403, 74 Cong. Rec. 2569, 71st Cong. 3d Sess. For the
establishment of the committee and its powers, see 72 Cong.
Rec. 6828, 6829, 71st Cong. 2d Sess., Apr. 10, 1930.
---------------------------------------------------------------------------
Again, during the 86th Congress, a subcommittee on elections of the
Committee on House Administration traveled to an Arkansas congressional
district, where a seat was being contested (Mr. Dale Alford was the
certified Member). Its purpose was to take physical custody of ballots
and other materials and to isolate questionable ballots for further
consideration. A federal court impounded the ballots for the use of the
committee.(2)
---------------------------------------------------------------------------
2. See the remarks at 105 Cong. Rec. 18610, 18611, 86th Cong. 1st
Sess., Sept. 8, 1959. The investigation was undertaken pursuant
to H. Res. 1, 86th Cong. 1st Sess.
For another occasion where the Committee on House
Administration recounted ballots under its investigatory power,
see Sec. 8.5, supra.
---------------------------------------------------------------------------
Validity of Ballots
Sec. 8.11 Absent fraud, violations of directory state laws gov
[[Page 891]]
erning the conduct of election officials as to ballots are not
sufficient to invalidate ballots, but laws regulating the conduct
of voters as to ballots must be substantially complied with, as the
latter are mandatory.(3)
---------------------------------------------------------------------------
3. The only federal statute on the form of ballots is 2 USC Sec. 9,
requiring a written or printed ballot unless voting machines
have been authorized by state law.
---------------------------------------------------------------------------
Elections committees of the House examining allegedly invalid
ballots have determined, often in reliance on state court opinions,
that those state laws regulating the conduct of election officials in
relation to ballots are merely directory in nature, violations thereof
not constituting sufficient grounds to invalidate ballots. Laws
governing the conduct of voters in marking and handling ballots are on
the other hand mandatory in nature, and substantial violations operate
to void the respective ballots.(4)
---------------------------------------------------------------------------
4. A state law requiring alternation of names on ballots and
publication and display of ballots for a certain period prior
to an election has been considered mandatory where invoked
prior to the election. Committee on House Administration,
report submitted Aug. 21, 1951, 97 Cong. Rec. 10494, 82d Cong.
1st Sess.
---------------------------------------------------------------------------
The following laws have been ruled as directory in nature and not
sufficient to invalidate ballots: a requirement that certain
instruments be made available to mark ballots; (5) a law
regarding poll procedure and disposition of absentee ballots,
envelopes, and applications; (6) a law requiring initials of
precinct or poll clerks on ballots; (7) a law prohibiting
sticker votes and write-in votes where the state customarily accepted
such votes and the state attorney general had opined that their use was
legal.(8)
---------------------------------------------------------------------------
5. Committee on House Administration, report submitted June 13, 1961,
107 Cong. Rec. 10186, 87th Cong. 1st Sess. (law not made
mandatory by fact that election officials were subject to
criminal sanctions for violation thereof).
6. Committee on House Administration, report submitted Aug. 6, 1958,
104 Cong. Rec. 16481, 85th Cong. 2d Sess.
7. Committee on House Administration, report submitted June 13, 1961,
107 Cong. Rec. 10186, 87th Cong. 1st Sess. (adoption of state
court opinion).
8. Committee on House Administration, report submitted Sept. 8, 1959,
105 Cong. Rec. 18610, 86th Cong. 1st Sess. (where a
subcommittee had unanimously recommended that the state clarify
the use of stickers and write-in voting in its election laws).
---------------------------------------------------------------------------
The following laws have been regarded as mandatory, with violations
thereof voiding ballots: a law containing provisions declar
[[Page 892]]
ing an act of an election official essential to the validity of an
election; (9) a law requiring the county clerk's seal and
initials on absentee ballots; (10) a law requiring voter
compliance with absentee voting laws; (11) and a law
requiring that a ballot be invalidated if the voter's choice could not
be ascertained for any reason.(12)
---------------------------------------------------------------------------
9. Committee on Elections No. 3, report submitted Feb. 15, 1944, 90
Cong. Rec. 1675, 78th Cong. 2d Sess.
10. Committee on House Administration, report submitted June 13, 1961,
107 Cong. Rec. 10186, 87th Cong. 1st Sess. (adoption of state
court opinion).
11. Report submitted Aug. 6, 1958, 104 Cong. Rec. 16481, 85th Cong. 2d
Sess. (listing nine types of mandatory absentee voting laws).
The report concluded that where absentee ballots should be
rejected due to improper envelopes and applications, the method
of proportionate deduction could be used to equitably deduct
votes from the totals of the respective candidates.
12. Report submitted Aug. 6, 1958, 104 Cong. Rec. 16481, 85th Cong. 2d
Sess. (adoption of state court opinion.)
---------------------------------------------------------------------------
CHAPTER 8
Elections and Election Campaigns
B. TIME, PLACE, AND REGULATION OF ELECTIONS
Sec. 9. Elections to Fill Vacancies
Article I, section 2, clause 4 of the Constitution provides that
upon the creation of a vacancy in the House, the executive authority of
the state shall issue a writ of election to fill the vacancy. A vacancy
in the Senate may be filled either by a writ of election or by state
executive appointment under the 17th amendment.(13)
---------------------------------------------------------------------------
13. For Senate appointments, see Sec. Sec. 9.149.16, infra.
Proposals to amend the Constitution to allow the
appointment of Representatives to fill temporary vacancies have
been rejected. See Sec. 9.9, infra.
---------------------------------------------------------------------------
Whether a vacancy arises by death, resignation, declination, or
action of the House,(14) the vacancy must be officially
declared, either by the state executive or by the House, in order that
a special election may be held. Usually state authorities take
cognizance of the vacancy without the requirement of notice by the
House, and normally the state executive declares the vacancy to exist,
particularly in cases of death, declination, or
resignation.(5)
---------------------------------------------------------------------------
14. For the ways in which vacancies may be created, see House Rules and
Manual Sec. Sec. 18-24 (comments to U.S. Const. art. I, Sec. 2,
clause 4) (1973).
15. See House Rules and Manual Sec. Sec. 18, 19 (1973).
---------------------------------------------------------------------------
If a Member resigns directly to the state Governor, as is the
customary practice, the House is thereafter notified and the House need
take no action.(16) If he re
[[Page 893]]
signs directly to the Speaker, the Speaker may be given authority by
the House to notify the state Governor of the vacancy.(17)
Although a resigning Member may specify that his resignation take
effect in the future,(18) there is doubt as to the validity
or effectiveness of a resignation which does not specify its effective
date.(19)
---------------------------------------------------------------------------
16. See Sec. 9.1, infra.
17. See Sec. 9.2, infra.
18. See Sec. 9.3, infra.
19. Id.
---------------------------------------------------------------------------
If a Governor does not recognize the existence of a vacancy, such
as in the case of a presumed death not susceptible of proof, the House
itself may declare the seat vacant, as it does where independent House
action creates a vacancy by expulsion or exclusion of a
Member.(20)
---------------------------------------------------------------------------
20. See Sec. 9.2, infra (Speaker notifies state of vacancy) and
Sec. 9.5, infra (presumed death, House declaration of vacancy).
---------------------------------------------------------------------------
Once the vacancy is declared, the state Governor has a mandatory
and not merely a directory duty to call for a special
election.(1)
---------------------------------------------------------------------------
1. See Jackson v Ogilvie, 426 F2d 1333 (7th Cir. 1970), cert. denied,
400 U.S. 833; In re Congressional Election, 15 R.I. 624, 9
A.224 (1887); In re the Representation Vacancy, 15 R.I. 621, 9
A.222 (1887). Contra, People ex rel. Fitzgerald v Voorhis, 222
N. Y. 494 119 N.E. 106 (1918) (state court, would not interfere
with executive discretion to call special election).
---------------------------------------------------------------------------
The time, place, and manner of special elections are regulated in
much the same way as in general elections; in the absence of federal
regulation, state law governs the proceedings.(2) And
Congress is the sole judge of the elections and returns of Members-
elect to fill vacancies, whose certificates must be transmitted to the
House and must show the Member-elect regularly elected in accordance
with federal and state law.(3)
---------------------------------------------------------------------------
2. See Sec. 9.7, infra.
3. For materials on Congress as judge of elections to fill vacancies,
see Sec. Sec. 9.7, 9.8, infra. For the certificates of election
of Members-elect to fill vacancies, see Sec. Sec. 9.11-9.13,
infra.
---------------------------------------------------------------------------
Although the time for general elections is regulated by federal
statute,(4) the states appoint the time of special elections
to fill vacancies.(5) The state in holding a special
election must comply with constitutional and statutory requirements
applicable to all federal elections, such as those mandating full
voting rights and properly drawn congressional districts.(6)
---------------------------------------------------------------------------
4. See 2 USC Sec. 7.
5. See 2 USC Sec. 8.
6. For protection of voting rights, see Sec. 6, supra. For districting
requirements, see Sec. Sec. 3, 4, supra.
In cases where congressional district lines were redrawn
after the general election but before a special election, the
decisions have been in conflict as to whether the special
election should be held in the old district or the newly drawn
district. See People ex rel. Fitzgerald v Voorhis, 222 N.Y.
494, 119 N.E. 106 (1918) (election to be held in new district
rather than district at time of original election); contra,
Sloan v Donoghue, 20 Cal. 2d 607, 127 P.2d 607, 127 P.2d 922
(1942). See also 1 Hinds' Precedents Sec. Sec. 311, 312, 327.
---------------------------------------------------------------------------
[[Page 894]]
Notification of Vacancy
Sec. 9.1 Under normal practice, Members notify the Speaker by letter of
their resignation after first submitting their resignations to the
Governor of their state.
On Sept. 12, 1968,(7) the Speaker (8) laid
before the House a communication from Mr. Charles Goodell, of New York,
which read as follows:
---------------------------------------------------------------------------
7. 114 Cong. Rec. 26541, 90th Cong. 2d Sess. For further illustrations
see 108 Cong. Rec. 7, 87th Cong. 2d Sess., Jan. 10, 1962; and
89 Cong. Rec. 7779, 78th Cong. 1st Sess., Sept. 23, 1943.
8. John W. McCormack (Mass.).
House of Representatives,
Washington, D.C.,
September 11, 1968.
Hon. John W. McCormack,
Speaker of the House of Representatives,
Washington, D.C.
Dear Mr. Speaker: I have today submitted my resignation as
United States Representative from the 38th District of the State of
New York to the Governor of New York. This resignation is effective
at the close of business on September 9, 1968.
The years I have spent in the House of Representatives have
been memorable ones. I will not soon forget the many wonderful
friendships I made during these years. The opportunity to serve
with you and the many outstanding members of the House of
Representatives has been most rewarding.
I look forward to working with you and your colleagues in
another capacity as we continue to pursue constructive and positive
solutions to the critical problems of the times.
With warm personal regards, I am,
Very truly yours,
Charles E. Goodell.
Sec. 9.2 Where a Member resigns by direct communication to the Speaker
only, the House authorizes the Speaker to notify the Governor of
the State in order to effectuate the resignation and create a
vacancy.(9)
---------------------------------------------------------------------------
9. Where the House itself creates a vacancy, as by its ruling in an
election case or otherwise, the Speaker is directed to notify
the state executive of the vacancy (see Sec. Sec. 9.5, 9.7,
infra). But a Member's resignation is only effective when
transmitted to the Governor, and not to the House.
---------------------------------------------------------------------------
On July 12, 1957, after a Member from Pennsylvania had re
[[Page 895]]
signed directly to the House,(10) Speaker Sam Rayburn, of
Texas, was authorized by the House (by unanimous consent) to notify the
Governor of Pennsylvania of the vacancy as follows:
---------------------------------------------------------------------------
10. 103 Cong. Rec. 11536, 85th Cong. 1st Sess. See also 75 Cong. Rec.
2969, 72d Cong. 1st Sess., Jan. 29, 1932; 90 Cong. Rec. 8450,
78th Cong. 2d Sess., Nov. 27, 1944; 106 Cong. Rec. 16535, 86th
Cong. 2d Sess., Aug. 16, 1960 (during adjournment, previous
authority granted).
His Excellency George M. Leader,
Governor of Pennsylvania,
Harrisburg, Pa.
Sir: Honorable Samuel K. McConnell, Jr. on Friday July 12,
1957, submitted his resignation as a Representative in the Congress
of the United States from the Thirteenth District of Pennsylvania,
effective September 1, 1957, and pursuant to the order of the House
of Representatives on Friday, July 12, 1957, I have been directed
to so inform you.
Very truly yours,
Sam Rayburn.
Resignations Effective in the Future
Sec. 9.3 Resigning Members have on occasion made their resignations
effective on a future date and on one occasion the effective date
followed the anticipated date of a special election to fill the
vacancy which would be created; but a resignation to become
effective when a special election may be held or a successor
elected, without specifying an effective date certain, is invalid
and does not create a vacancy.
On Oct. 2, 1963,(11) W. Homer Thornberry notified
Speaker John W. McCormack, of Massachusetts, of his resignation as a
Representative from Texas, the resignation to become effective Dec. 20,
1963. Mr. Thornberry delayed the effective date of his resignation
because of the press of business in the House and because a special
election, for another purpose, had previously been scheduled for Dec. 9
in Texas; that date was therefore considered an opportune time to
conduct a special election for Mr. Thornberry's seat. James J. Pickle,
of Texas, was elected to fill the seat in the Dec. 9 special election
and took the oath as a Member on Dec. 21, 1963.
---------------------------------------------------------------------------
11. 109 Cong. Rec. 18583, 88th Cong. 1st Sess.
---------------------------------------------------------------------------
On Dec. 1, 1944,(12) in the 78th Congress, second
session, Dave E. Satterfield notified Speaker Sam Rayburn, of Texas, of
his resignation as a Representative from Virginia, ``to become
effective as soon as my successor can be elected.''
---------------------------------------------------------------------------
12. 90 Cong. Rec. 8689, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
[[Page 896]]
Mr. Satterfield had already been re-elected in November to a House seat
in the 79th Congress. No special election was called in Virginia and
Mr. Satterfield took his seat as a Representative from Virginia to the
79th Congress. On Jan. 29, 1945, Mr. Satterfield resigned from the
House, effective on Feb. 15, 1945.
On Jan. 18, 1965 (see Sec. 9.4, infra), Albert W. Watson notified
Speaker John W. McCormack, of Massachusetts, of his resignation as a
Representative from South Carolina, to be effective ``upon such date as
the Governor may set for a special election to fill the vacancy.'' The
Governor of South Carolina declined to take any action on the
conditional resignation and no special election was called. On Jan. 28,
1965, Mr. Watson notified the Speaker of his resignation as a
Representative to take effect immediately.
On Sept. 26, 1956,(13) Senator Marion Price Daniel (who
had begun his six-year term in 1953) resigned his seat in the Senate
from the State of Texas, to become effective Jan. 15, 1957, ``or at
such earlier date as my successor has been elected and qualified.''
Senator Daniel's letter of resignation to the Governor of Texas stated
that ``although the date of the election . . . is a matter within your
discretion, please permit me to express the hope that it will be held
in time for my successor to take office not later than January 3.'' The
Governor of Texas did not call a special election, since no vacancy
could be created by the qualified resignation until Jan. 15, 1957, in
the 85th Congress first session. Senator William A. Blakley was
appointed to fill the vacancy created on Jan. 15 and took his seat in
the Senate on Jan. 17.
---------------------------------------------------------------------------
13. 103 Cong. Rec. 3, 85th Cong. 1st Sess., Jan. 3, 1957 (letter of
resignation laid before the Senate at convening of 85th
Congress).
---------------------------------------------------------------------------
Parliamentarian's Note: For a discussion in the Senate in the 58th
Congress on the impropriety of a resignation to take effect on a future
unspecified date, see 2 Hinds' Precedents Sec. 1229. The view was
expressed on that occasion (involving a contested election case) that
any resignation to take effect in the future, whether or not an
effective date was specified, only constituted notice of the intention
to resign, since the resigning Member could withdraw his resignation
before it took effect. See, for example, the resignation of a Member to
take effect on a future specified date cited at 6 Cannon's Precedents
Sec. 231; the Member withdrew his resignation
[[Page 897]]
after it had been received by the State Governor but before its
effective date.
The precedents of the House have established that a resignation may
be made effective on a future date (see 2 Hinds' Precedents
Sec. Sec. 1220-1227), but as the precedents above indicate, a
resignation which does not specify a date certain on which it becomes
effective is invalid and does not create a vacancy. And in view of the
possibility of the withdrawal of a resignation which is not yet
effective, a special election to fill the seat should be withheld until
the effective date of the resignation.
State Duty to Call Special Election
Sec. 9.4 Where a Member resigned, his resignation to be effective on
the date of an election to fill the vacancy, and the Governor
failed to call a special election, the Member immediately resigned
from the House.
On Jan. 18, 1965,(14) Speaker John W. McCormack, of
Massachusetts, laid before the House a letter from Mr. Albert W.
Watson, of South Carolina, advising the Speaker of his resignation to
the Governor of his state, such resignation to be effective upon such
date as the governor may set for a special election to fill the
vacancy.
---------------------------------------------------------------------------
14. 111 Cong. Rec. 805, 806, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
On Jan. 28, 1965,(15) the Speaker laid before the House
a communication from Mr. Watson stating that it appeared that the
Governor of South Carolina intended to take no affirmative action on
his provisional resignation or to call a special election to fill the
vacancy that would be created. Mr. Watson therefore immediately
resigned his seat as a Representative, to the Governor with notice to
the Speaker.(16)
---------------------------------------------------------------------------
15. 111 Cong. Rec. 1452, 89th Cong. 1st Sess.
16. When a vacancy in a congressional seat is created, the state
Governor has an affirmative duty under U.S. Const. art. I,
Sec. 2, clause 4 to call a special election to fill the
vacancy. See Jackson v Ogiluie, 426 F2d 1333 (7th Cir. 1970),
cert. denied, 400 U.S. 833.
Under 2 USC Sec. 8, the state legislature may prescribe the
time for a special election to fill a congressional vacancy.
---------------------------------------------------------------------------
Sec. 9.5 Where a Member-elect disappeared between the issuance of his
certificate of election and the convening of the Congress, and the
Governor took no action, the House declared the seat va
[[Page 898]]
cant and notified the Governor thereof.
On Jan. 3, 1973, at the convening of the 93d Congress, Speaker Carl
Albert, of Oklahoma, laid before the House communications from the
Clerk advising him of the disappearance of an aircraft carrying two
Representatives-elect to the House, N.J. Begich, of Alaska, and Hale
Boggs, of Louisiana.(17) The Clerk's communication stated
that, for one of those Members-elect, the Governor of the state had
declared the congressional seat vacant, pursuant to a presumptive death
verdict and a certificate of presumptive death.
---------------------------------------------------------------------------
17. 119 Cong. Rec. 15, 16, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
As to the other Member-elect, Mr. Boggs, the Clerk advised the
Speaker that the attorney general of Louisiana had informed him that no
action had been taken by the Governor and no action was contemplated to
change the status of Mr. Boggs or to change the status of the
certificate of election for Mr. Boggs filed with the Clerk.
The House then adopted House Resolution 1, declaring the seat of
Mr. Boggs to be vacant and notifying the Governor of Louisiana of the
existence of the vacancy.(18)
---------------------------------------------------------------------------
18. Id.
---------------------------------------------------------------------------
Sec. 9.6 After a vacancy was created by the death of a Representative,
the state Governor proclaimed the winner of the special primary
election to be duly elected to the House without holding a general
election, since the primary winner was the only qualified candidate
for the general election.
On Oct. 18, 1965,(19) Mr. Edwin W. Edwards took the oath
of office to fill a vacancy from the State of Louisiana. On Oct. 15,
1965, the Governor of Louisiana had proclaimed Mr. Edwards duly elected
to the House of Representatives, without holding a general election,
since Mr. Edwards had won the special Democratic primary election and
no other candidates had qualified to stand for office in the general
election to fill the vacancy.
---------------------------------------------------------------------------
19. 111 Cong. Rec. 27171, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Application of State Law as to Special Elections
Sec. 9.7 Congress in judging the elections of Members to fill vacancies
follows state law regulating the time and procedure for such
elections, in the absence of federal regulation.(20)
---------------------------------------------------------------------------
20. See U.S. Const. art. I, Sec. 4, clause 1 and 2 USC Sec. 8.
---------------------------------------------------------------------------
[[Page 899]]
On Jan. 20, 1934, a Committee on Elections submitted House
Resolution 231 and House Report No. 334, declaring null and void an
election to fill a vacancy and denying the seat to either of the two
contestants, one with a certificate of election from the Governor and
one with a certificate of election from a citizens'
committee.(1)
---------------------------------------------------------------------------
1. 78 Cong. Rec. 1035, 73d Cong. 2d Sess. On Jan. 3, 1934, the House
had denied the right to be sworn to either contestant and had
referred the matter to the Elections Committee. 78 Cong. Rec.
11, 12, 73d Cong. 2d Sess.
---------------------------------------------------------------------------
The committee (see H. Rept. No. 334) had determined, after
examining the relevant state law, that: The election to fill the
vacancy, held pursuant to the governor's proclamation, was invalid
because held prior to expiration of the period required by state law to
precede the election; and although the election was invalid, a party
committee could not itself nominate a candidate and hold an election to
choose him as a Representative.(2) The House adopted the
resolution declaring the election null and void:
---------------------------------------------------------------------------
2. See 78 Cong. Rec. 1108-11, 73d Cong. 2d Sess., Jan. 22, 1934 and 78
Cong. Rec. 1510-21, 73d Cong. 2d Sess., Jan. 29, 1934.
---------------------------------------------------------------------------
Resolved, That there was no valid election for Representative
in the House of Representatives of the Seventy-third Congress from
the Sixth Congressional District of the State of Louisiana on the
5th day of December, or the 27th day of December 1933, and that
neither Mrs. Bolivar E. Kemp nor J. Y. Sanders, Jr., is entitled to
a seat therein; and be it further
Resolved, That the Speaker communicate to the Governor of the
State of Louisiana that there is a vacancy in the representation of
that State in the Sixth Congressional District
thereof.(3)
---------------------------------------------------------------------------
3. 78 Cong. Rec. 1521, 73d Cong. 2d Sess., Jan. 29, 1934.
---------------------------------------------------------------------------
Sec. 9.8 Where a state court issued a preliminary injunction against
the issuance of a certificate to a Member-elect to fill a vacancy
and the Speaker declined to administer him the oath, without the
certificate and without unanimous consent of the House, the House
authorized that he be sworn and referred to committee the question
as to his final right to a seat.
On May 24, 1972, the House authorized the Speaker to administer the
oath to Member-elect William S. Conover II, to fill a vacancy in a
congressional seat from Pennsylvania.(4) House Resolution
986, authorizing the administration of the oath, provided that Mr.
[[Page 900]]
Conover's final right to a seat be referred to the Committee on House
Administration, since a citizens' group had obtained a state court
preliminary injunction prohibiting the state Governor from issuing a
certificate of election to Mr. Conover:
---------------------------------------------------------------------------
4. H. Res. 986, 118 Cong. Rec. 18654, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Whereas the Honorable James G. Fulton, Representative from the
Twenty-seventh District of Pennsylvania, died on the 5th day of
October 1971;
Whereas Governor Milton Shapp, duly elected Governor of the
Commonwealth of Pennsylvania, ordered a special election for the
purpose of filling the seat vacated by the death of the Honorable
James G. Fulton;
Whereas said special election was held on the 25th day of April
1972;
Whereas the laws of Pennsylvania provide that any candidate may
challenge the results of said election within twenty days of the
election;
Whereas twenty days have expired and neither Douglas Walgren,
Democratic candidate in that special election, nor Willard Holt,
Constitution candidate in said special election, have filed suit in
any court challenging said election;
Whereas the Bureau of Elections, Allegheny County, has
forwarded the official certified vote to the Secretary of the
Commonwealth of Pennsylvania, according to the laws of the
Commonwealth of Pennsylvania, showing that William S. Conover II
received twenty-eight thousand six hundred and forty-seven votes;
Douglas Walgren received twenty-five thousand nine hundred and
fifty-six votes; and Willard Holt received one thousand five
hundred and seventeen votes;
Whereas a citizens' group has instituted a suit against Milton
Shapp, Governor of the Commonwealth of Pennsylvania, and C. Delores
Tucker, Secretary of the Commonwealth of Pennsylvania, and did on
May 11, 1972, obtain in the Commonwealth Court of Pennsylvania a
preliminary injunction restraining Milton Shapp, Governor of the
Commonwealth of Pennsylvania, from issuing a certificate of
election based on the aforementioned results of the special
election held April 25, 1972;
Whereas legal proceedings emanating from this suit may result
in protracted litigation thereby depriving the Twenty-seventh
Congressional District of Pennsylvania of representation in the
House of Representatives for an indefinite period; and
Whereas under article I, section 5 of the Constitution of the
United States the House of Representatives is the judge of the
elections, returns and qualifications of its own Members: Therefore
be it
Resolved, That the Speaker is hereby authorized and directed to
administer the oath of office to the gentleman from Pennsylvania,
Mr. William S. Conover II; and be it further
Resolved, That the question of the final right of William S.
Conover II to a seat in the Ninety-second Congress be referred to
the Committee on House Administration, and said committee shall
have the power to send for persons and papers and examine witnesses
on oath in relation to the subject matter of this resolution.
Parliamentarian's Note: Mr. Conover had originally appeared to take
the oath of office shortly
[[Page 901]]
after the special election to fill the vacancy was held on Apr. 25,
1972, but Speaker Carl Albert, of Oklahoma, declined to administer the
oath due to the preliminary injunction and the likelihood of an
objection being raised to Mr. Conover's taking the oath without a
certificate of election.
Proposals to Fill Vacancies by Appointment
Sec. 9.9 Proposals to amend the Constitution to provide for filling
vacancies in the House by appointment have been
rejected.(5)
---------------------------------------------------------------------------
5. See, e.g., 106 Cong. Rec. 1715, 1747, 1748, 86th Cong. 2d Sess.,
Feb. 2, 1960 (S.J. Res. 39).
---------------------------------------------------------------------------
Re-election of Representative to Succeed Himself
Sec. 9.10 A Member who resigns or who is excluded from the House may be
re-elected in a special election to succeed himself in the same
Congress.
On Nov. 20, 1944,(6) Mr. James Domengeaux appeared to
take the oath of office. He was elected to fill a vacancy created when
he had resigned his congressional seat from the State of Louisiana in
the same Congress.
---------------------------------------------------------------------------
6. 90 Cong. Rec. 8201, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: Mr. Domengeaux resigned to enter the armed
forces and after approximately 90 days was discharged because of
physical disability.
On May 1, 1967,(7) Speaker John W. McCormack, of
Massachusetts, laid before the House a letter from the Clerk, advising
receipt of a certificate showing the special election of Mr. Adam C.
Powell, of New York, to fill a vacancy created when the House, on Mar.
1, 1967, adopted a resolution excluding Mr. Powell from membership and
declaring his seat vacant. In response to a parliamentary inquiry, the
Speaker indicated that if Mr. Powell appeared to take the oath and was
again challenged, the House would have to determine, at that time, what
action it should take.
---------------------------------------------------------------------------
7. 113 Cong. Rec. 11298, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
On June 16, 1965,(8) Mr. Albert W. Watson, of South
Carolina, elected in a special election to fill the vacancy created
when he himself resigned from the House, was administered the oath of
office. He had originally been elected as a Democrat, resigned from the
House, and was re-elected to the House as a Republican.(9)
---------------------------------------------------------------------------
8. 111 Cong. Rec. 13774, 89th Cong. 1st Sess.
9. See also Sec. 7.5, supra, where a Senator elected by a ``write-in''
vote resigned to permit a regular primary election and
announced his candidacy therein.
---------------------------------------------------------------------------
[[Page 902]]
Certificate of Election to Fill Vacancy
Sec. 9.11 The Clerk notifies the Speaker when he receives certificates
of elections to fill vacancies in the House.
On Jan. 3, 1956,(10) the Speaker laid before the House a
communication from the Clerk stating as follows:
---------------------------------------------------------------------------
10. 102 Cong. Rec. 5, 84th Cong. 2d Sess. See also 104 Cong. Rec. 5,
85th Cong. 2d Sess., Jan. 7, 1958; 112 Cong. Rec. 6, 89th Cong.
2d Sess., Jan. 10, 1966 (certificates for Members to fill
vacancies are not laid before the House until after the roll
call, on the convening day of the second session); 114 Cong.
Rec. 25508, 90th Cong. 2d Sess., Sept. 4, 1968; 115 Cong. Rec.
26056, 26057, 91st Cong. 1st Sess., Sept. 18, 1969 (Governor of
state, having named appointee to fill vacancy, appeared on
Senate floor to witness taking of oath by appointee).
---------------------------------------------------------------------------
A certificate of election in due form of law for the Honorable
John D. Dingell as a Representative-elect to the Eighty-fourth
Congress from the Fifteenth Congressional District of the State of
Michigan, to fill the vacancy caused by the death of his father,
the late Honorable John D. Dingell, has been received from the
secretary of state of Michigan, and is on file in this office.
Sec. 9.12 Members-elect to fill vacancies may be sworn by unanimous
consent where their certificates of elections have not arrived and
their elections are not contested.(11)
---------------------------------------------------------------------------
11. 115 Cong. Rec. 28487, 91st Cong. 1st Sess., Oct. 3, 1969 (sworn in
as Member prior to vote on military procurement authorization
for 1970); 111 Cong. Rec. 27171, 89th Cong. 1st Sess., Oct. 18,
1965 (only candidate for the vacancy); 111 Cong. Rec. 13774,
89th Cong. 1st Sess., June 16, 1965 (re-election of Member who
resigned); 100 Cong. Rec. 13282, 83d Cong. 2d Sess., Aug. 4,
1954 (Delegate-elect); 90 Cong. Rec. 8194, 78th Cong. 2d Sess.,
Nov. 16, 1944.
---------------------------------------------------------------------------
Sec. 9.13 A Member-elect elected to fill a vacancy was sworn in,
although his certificate was objected to on the ground that it
stated he was ``duly elected as Congressman,'' instead of
``Representative in Congress.'' (12)
---------------------------------------------------------------------------
12. Although no special form for the certificate of a Representative-
elect is required by federal law, the certificate of a Member-
elect to fill a vacancy should identify the vacancy and term he
is filling. See, in general, Sec. 15, infra.
---------------------------------------------------------------------------
On June 2, 1930,(13) Mr. Robert H. Clancy, of Michigan,
arose to object to the validity of the certificate of election of
Thomas L.
[[Page 903]]
Blanton, Member-elect from Texas, to fill a vacancy. Mr. Clancy's
objection was based on the description in the credentials of Mr.
Blanton as ``Congressman,'' instead of as ``Representative in
Congress.''
---------------------------------------------------------------------------
13. 72 Cong. Rec. 9891, 9892, 71st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. John N. Garner, of Texas, arose to state that Mr. Clancy's
objection was frivolous, since the certificate clearly stated that Mr.
Blanton was elected from the 17th District of Texas, and to succeed Mr.
Robert Q. Lee, who all the Members of the House knew represented the
17th District in the House. Mr. Clancy responded that the Clerk of the
House had notified the authorities in Texas a number of times that they
should not designate the office as ``Congressman,'' but as
``Representative in Congress,'' and that the precedents of the House
mandated that the credentials must be in order and must correctly
describe the office.
The House then voted on the question and directed that the Speaker
administer the oath to the challenged Member-elect.
Appointees to Fill Vacancies in Senate
Sec. 9.14 An appointee to fill a vacancy in the Senate declined to
serve, whereupon his certificate of appointment was returned to the
state Governor.
On June 21, 1956,(14) there was laid before the Senate
two communications from Governor Chandler of Kentucky, one appointing
Senator-elect Joseph Leary to fill a vacancy, and one asking the return
of the certificate of appointment, since Mr. Leary had declined to
serve. The Senate ordered the return of the certificate:
---------------------------------------------------------------------------
14. 102 Cong. Rec. 10769, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Ordered, That in view of the declination of Joseph J. Leary of
the appointment by the Governor of Kentucky as Senator from that
State to fill the vacancy caused by the death of the late Senator
Alben W. Barkley, the certificate of appointment of Mr. Leary be
returned by the Secretary of the Senate to the Governor, in
comoliance with his request.
Sec. 9.15 Where a candidate was simultaneously elected as a Senator and
as Vice President, he was administered the oath as Senator and then
immediately resigned from the Senate; this resignation was followed
by the administration of the oath to an appointee to fill the
vacancy that had been created.
On Jan. 3, 1961,(15) Senator-elect Lyndon B. Johnson, of
[[Page 904]]
Texas, was administered the oath, after which he submitted his
resignation from the Senate due to his election as Vice President of
the United States.
---------------------------------------------------------------------------
15. 107 Cong. Rec. 6, 7, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Following his resignation, there were laid before the Senate a
letter and telegram from the Governor of Texas appointing Mr. William
A. Blakley to fill the vacancy created by Mr. Johnson's resignation.
After the receipt of the communications, Mr. Blakley, who was present,
was administered the oath.
Sec. 9.16 The Speaker laid before the House a letter of resignation
from a Member who had been appointed to the Senate to fill the
vacancy caused by the resignation of a Senator whose term of office
was about to expire.
On Dec. 31, 1970, the Speaker laid before the House the resignation
of Mr. William V. Roth, Jr., of Delaware. Mr. Roth had been appointed
by the Governor to fill a vacant senatorial seat and was administered
the oath in the Senate on Jan. 2, 1971, although the term of office for
the seat was to expire a day later on Jan. 3, 1971.(16)
---------------------------------------------------------------------------
16. 116 Cong. Rec. 44516, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: Mr. Roth had been elected as a Senator from
Delaware, his term to begin Jan. 3, 1971; the appointment to fill the
vacancy in the 91st Congress had the effect of increasing his seniority
in the 92d Congress.
CHAPTER 8
Elections and Election Campaigns
C. CAMPAIGN PRACTICES
Sec. 10. Regulation and Enforcement
The U.S. Constitution grants each House of Congress the power,
under article I, section 5, to judge the elections and returns of its
own Members. It also grants to Congress, under article I, section 4,
the power to make or alter regulations for the time, place, and manner
of holding elections.(17)
---------------------------------------------------------------------------
17. For the constitutional provisions and comments thereon, see House
Rules and Manual Sec. Sec. 42-44, 46-51 (1973).
---------------------------------------------------------------------------
The Supreme Court has affirmed that the power of Congress to make
regulations for holding elections extends to every phase of the
election process, including campaign practices:
[[Page 905]]
It cannot be doubted that these comprehensive words [U.S.
Const. art. I, Sec. 4, clause 1] embraces authority to provide a
complete code for congressional elections, not only as to times and
places, but in relation to notices, registration, supervision of
voting, protection of voters, prevention of fraud and corrupt
practices, counting of votes, duties of inspectors and candidates,
and making a publication of election returns; in short, to enact
numerous requiements as to procedure and safeguards which
experience shows are necessary in order to enforce the fundamental
right involved.(18)
---------------------------------------------------------------------------
18. Smiley v Holme, 285 U.S. 355, 366 (1932).
Congressional authority over election regulation and
practices extends to the primary process. See United States v
Classic, 313 U.S. 299 (1941), United States v Wurzbach, 280
U.S. 396 (1930).
---------------------------------------------------------------------------
Until 1972, campaign practices in congressional elections were
governed by the Corrupt Practices Act of 1925, as amended; the Federal
Election Campaign Act of 1971 repealed the Corrupt Practices Act and
established a new and comprehensive code for campaign practices and
expenditures with provisions for investigations and
enforcement.(19) The act required reports on campaign
contributions and expenditures to be filed with the Clerk by candidates
for election to the House and designated the Clerk as ``supervisory
officer'' of the act in relation to House elections with duties as to
investigations, enforcement, and referral to prosecutors of violations
of the act. Because of the Clerk's role under the election statutes, a
variety of civil actions have been brought against him in his official
capacity, and the Clerk has been authorized to obtain counsel when
necessary in relation to his statutory functions. The Federal Election
Campaign Act Amendments of 1974 imposed new limitations on campaign
contributions and expenditures, modified reporting requirements under
the act, provided for public financing of Presidential nominating
conventions and primary elections, and created a new Federal Election
Commission to investigate and enforce compliance with the act, to
render advisory opinions and to promulgate rules and regulations under
the act. Under the 1974 amendments, the commission was composed of the
Clerk of the House and Secretary of the Senate, as ex officio members
without voting rights, and six members, two to be appointed by the
Speaker upon the recommendations of the Majority and Minority Leaders
of the House,
[[Page 906]]
two to be appointed by the President pro tempore upon the
recommendations of the Majority and Minority Leaders of the Senate, and
two to be appointed by the President; all nominees were subject to
confirmation by both Houses of Congress.(20)
---------------------------------------------------------------------------
19. Pub. L. No. 92-225, 86 Stat. 3, Feb. 7, 1972. See Sec. Sec. 10.6-
10.8, infra, for instances of civil actions brought against the
Clerk.
20. Pub. L. No. 93-443, 88 Stat. 1263, Oct. 15, 1974. See Sec. 10.11,
infra, for the procedure of the House in receiving and
confirming the nominations to the commission in 1975.
---------------------------------------------------------------------------
On Jan. 30, 1976, the U.S. Supreme Court handed down a decision in
the case of Buckley v Valeo,(21) in which the
constitutionality of the Federal Election Campaign Act Amendments was
challenged on several grounds. The Court ruled that certain of the
spending limitations imposed by the act violated the first amendment to
the Constitution; the Court also found that the Federal Election
Commission was prohibited from exercising all of the administrative and
enforcement powers granted to it by the act, since the authority of the
Speaker and the President pro tempore to appoint two members each to
the commission violated U.S. Constitution, article II, section 2,
clause 2, vesting in the President the power to nominate and to
appoint, with the advice and consent of the Senate, officers of the
United States. To remedy the constitutional infirmities of the 1974 act
and to effect further modifications in the Election Campaign Act, the
Congress passed and the President signed into law the Federal Election
Campaign Act Amendments of 1976; that act provided that all six members
of the Federal Election Commission be appointed by the President with
the advice and consent of the Senate.(22) The 1976
amendments also provided a new procedure, not contained in the 1974
act, for the House to consider as a privileged matter a report of the
appropriate House committee on a resolution disapproving certain
regulations proposed by the commission on reporting requirements for
candidates for election to the House; the 1974 act had made such
regulations subject to a single-House veto but did not specify any
procedure for House consideration of disapproval
resolutions.(23)
---------------------------------------------------------------------------
21. 424 U.S. 1 (1976); as indicated in the note to Sec. 10.11, infra,
the decision of the Court as to the powers of the commission
was stayed for a time certain to allow Congress to consider and
act on the matter.
22. Pub. L. No. 94-283, 90 Stat. 475, May 11. 1976.
23. See Sec. 10.12, infra, for a discussion of congressional
disapproval of commission regulations under the Election
Campaign Act, as amended.
---------------------------------------------------------------------------
[[Page 907]]
The functions of the Clerk under the 1974 and 1976 amendments to
the Federal Election Campaign Act of 1971 differ from his functions
both under the original act and under the Federal Corrupt Practices
Act.
Under the Federal Corrupt Practices Act, candidates for the House
were required to report to the Clerk, as were political committees
which fell within the terms of the act, even if such committees existed
to support senatorial or Presidential candidates.(24)
Similarly, any person making expenditures greater than $50, other than
by contribution to a political committee, had to file a statement
disclosing the particulars with the Clerk, if such expenditures
influenced the election of candidates in two or more
states.(25)
---------------------------------------------------------------------------
24. Pub. L. No. 506, Ch. 368, title III Sec. 305, Feb. 28, 1925.
25. Id., Sec. 306.
---------------------------------------------------------------------------
Under the Federal Election Campaign Act of 1971, which designated
the Clerk a ``supervisory officer'' with respect to House elections,
the definition of committees supporting candidates was broadened, with
the result that most of the intrastate and district committees
previously reporting at the state level under the Federal Corrupt
Practices Act had to file timely reports with the Clerk.(26)
Moreover, all committees falling within the definition had to file a
statement of organization and register with the Clerk.(27)
The Clerk had jurisdiction over amendments to or withdrawals of
registrations. Finally, the definition of an election was expanded to
include primaries and runoff elections.(28)
---------------------------------------------------------------------------
26. Pub. L. No. 92-225, 86 Stat. 3, Sec. 304(a), Feb. 7, 1972.
27. Id., Sec. 303(a).
28. Id., Sec. 301(a).
---------------------------------------------------------------------------
In addition to the reports which committees and candidates were
required to file at specified time intervals, the Clerk received
reports of independent expenditures. Among other duties and functions
of the Clerk were the following: to prescribe reporting and
registration forms together with separate schedules, particularly for
the reporting of committee debts and obligations; to make reports and
registrations available for public inspection; to preserve all
documents for a five-year period from the date of receipt; to conduct
audits and field investigations; to receive complaints and to report
any apparent violations of the act to the appropriate law enforcement
authorities; and to prescribe rules and regulations for the performance
of these duties.(1)
---------------------------------------------------------------------------
1. Id., Sec. 308.
---------------------------------------------------------------------------
Under the 1974 amendments, signed Oct. 15, 1974, many functions of
the Clerk were trans
[[Page 908]]
ferred to the newly established Federal Election Commission. Although
reports of House candidates and committees were still to be filed
initially with the Clerk, independent expenditure reports were now
required to be filed with the commission. The Clerk was required to
cooperate with the commission in carrying out its duties under the act
and to furnish such services and facilities as might be required. Any
complaints filed with, or apparent violations found by, the Clerk were
to be referred to the Federal Election Commission,(2) which
had primary jurisdiction with respect to civil enforcement of the law.
The Clerk continued to review registrations and reports filed so as to
determine their completeness and accuracy, although responsibility for
audits and field investigations was shifted to the staff of the Federal
Election Commission.
---------------------------------------------------------------------------
2. Pub. L. No. 93-443, 88 Stat. 1263, Sec. 314(a)(1)(B), Oct. 15,
1974.
---------------------------------------------------------------------------
Under the 1976 amendments, all complaints of possible violations
are to be submitted directly to the Federal Election Commission, rather
than the former practice whereby the Clerk referred apparent violations
of the act to the commission.(3)
---------------------------------------------------------------------------
3. Pub. L. No. 94-283, 90 Stat. 475 at 483, Sec. 313, May 11, 1976.
---------------------------------------------------------------------------
Other public laws bear on campaign practices, such as those
prohibiting bribery and other unlawful acts.(4)
---------------------------------------------------------------------------
4. See, for example, the following criminal statutes: 18 USC Sec. 599
(prohibits candidate from promising employment); 18 USC
Sec. 602 (solicitation or receipt of political contributions
from federal employees); 18 USC Sec. 603 (solicitation of
political contributions in federal building); 18 USC Sec. 611
(solicitation of contributions from federal contractors); 18
USC Sec. 608 (limitation on expenditure of personal funds); 18
USC Sec. 610 (no contributions from corporations or labor
unions); Pub. L. No. 92-225, Sec. Sec. 301-311 (failing to file
campaign fund reports).
---------------------------------------------------------------------------
The use by an incumbent Member of his statutory allowances, in
relation to campaigns, has been the subject of much discussion and
litigation.(5) In the 93d Congress, a public law was enacted
to clarify the use of the congressional frank, to prohibit the franking
of campaign mail, and to limit the jurisdiction of courts to the review
of decisions of a Special
[[Page 909]]
Commission on Mailing Standards, which commission has power to
investigate the use of the frank, whether related to campaign mail or
to other types of mail.(6)
---------------------------------------------------------------------------
5. For the allowances of a Member and their use, see Ch. 7, supra. For
a compilation of court cases on the alleged use of the frank
for campaign purposes, see Report of the Joint Committee on
Congressional Operations Identifying Court Proceedings and
Actions of Vital Interest to the Congress, Final Report for the
92d Congress, Dec. 1972.
6. Pub. L. No. 93-191, 87 Stat. 737, Dec. 18, 1973.
The act provides that the computed cost of franking shall
not be considered as a campaign expenditure or contribution for
the purpose of statutory limitations thereon. 87 Stat. 741.
---------------------------------------------------------------------------
The Committee on House Administration has general jurisdiction over
election practices and their regulation and obtained jurisdiction over
campaign contributions in the 94th Congress.(7) The
committee investigates contested elections and practices occurring in
specific campaigns.(8)
---------------------------------------------------------------------------
7. House Rules and Manual Sec. 693 (1973). The committee was created
by the Legislative Reorganization Act of 1947 and absorbed the
former Committee on Election of President, Vice President, and
Representatives in Congress.
8. For select committees on campaign expenditures, see Sec. 14, infra.
---------------------------------------------------------------------------
The Committee on Standards of Official Conduct, created in the 90th
Congress, has jurisdiction over financial disclosure requirements and,
until the 94th Congress, over the regulation of campaign
contributions.(9)
---------------------------------------------------------------------------
9. See Sec. 10.5, infra.
---------------------------------------------------------------------------
The states may also enact corrupt practices acts, and the Federal
Election Campaign Act provides for reports to be filed with proper
state officials, for each congressional candidate.(10)
---------------------------------------------------------------------------
10. Pub. L. No. 92-225, Sec. 309.
The House or its committee has taken state corrupt
practices acts into account in judging election contests; see
Sec. 11, infra. -------------------
---------------------------------------------------------------------------
Campaign Funding
Sec. 10.1 In the 90th Congress, the rules of the House were amended to
provide regulations governing the use and expenditure of campaign
funds.
On Apr. 3, 1968,(11) the House agreed to House
Resolution 1099, amending the rules of the House to establish, as new
Rule XLIII, a Code of Conduct for Members, and for other purposes.
Clauses 6 and 7 of the new rule related to campaign funds and
contributions:
---------------------------------------------------------------------------
11. 114 Cong. Rec. 8802, 90th Cong. 2d Sess.
---------------------------------------------------------------------------
6. A Member of the House of Representatives shall keep his
campaign funds separate from his personal funds. He shall convert
no campaign funds to personal use in excess of reimbursement for
legitimate and verifiable prior campaign expenditures. He shall
expend no funds from his campaign account not attributable to bona
fide campaign purposes.
7. A Member of the House of Representatives shall treat as
campaign
[[Page 910]]
contributions all proceeds from testimonial dinners or other fund
raising events if the sponsors of such affairs do not give clear
notice in advance to the donors or participants that the proceeds
are intended for other purposes.(12)
---------------------------------------------------------------------------
12. The resolution also provided for a financial disclosure
requirement, in Rule XLIV, not applicable to campaign receipts.
See House Rules and Manual Sec. 940 (1973). Disclosure of
campaign receipts and expenses are required under the Federal
Election Campaign Act.
---------------------------------------------------------------------------
Committee Jurisdiction
Sec. 10.2 Where a Presidential legislative proposal amending the
federal election laws included a title on income tax deductions for
political contributions, that title was deleted in order that the
Committee on House Administration could consider the bulk of the
proposal and the Committee on Ways and Means could consider the tax
proposal as a separate proposition.
On May 26, 1966,(13) a Presidential communication,
executive communication 2433, proposing a comprehensive amendment of
the federal election laws, was referred to the Committee on House
Administration. The proposal included amendments not only to the
Federal Corrupt Practices Act but also to the Internal Revenue Code.
---------------------------------------------------------------------------
13. 112 Cong. Rec. 11686, 11687, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: It was agreed by House leaders that while
most of the proposal fell within the jurisdiction of the Committee on
House Administration, title VII of the bill, pertaining to income tax
deductions for political contributions, was clearly within the
jurisdiction of the Committee on Ways and Means. It was agreed that the
latter committee would consider title VII as a separate proposition and
that the Committee on House Administration would delete that title from
the proposal before introducing the bill on the floor of the House.
Sec. 10.3 In the 74th Congress, bills relating to election offenses and
providing penalties therefor came within the jurisdiction of the
Committee on the Judiciary and not the (former) Committee on
Election of President, Vice President, and Representatives in
Congress.
On Feb. 19, 1936,(14) Mr. Thomas Fletcher Brooks, of
Ohio, addressed the House in order to ask
[[Page 911]]
unanimous consent that a bill relating to offenses in elections and
providing penalties therefore, which was formerly referred to the
Committee on Election of President, Vice President, and Representatives
in Congress, be rereferred to the Committee on the Judiciary. Mr.
Fletcher stated that he had talked with the chairmen of both
committees. There was no objection to the request.(15)
---------------------------------------------------------------------------
14. 80 Cong. Rec. 2360, 74th Cong. 2d Sess.
15. The former Committee on Election of President, Vice President, and
Representatives in Congress was absorbed by the Committee on
House Administration, created by the Legislative Reorganization
Act of 1947. See House Rules and Manual Sec. 694 (1973).
---------------------------------------------------------------------------
Sec. 10.4 The Committee on the Judiciary and not the Committee on
Military Affairs had jurisdiction of bills to repeal the provisions
of the War Disputes Act relating to political contributions by
labor organizations.
On May 11, 1944,(16) Mr. Andrew J. May, of Kentucky, who
had introduced a bill to repeal provisions of the War Disputes Act
relating to political contributions by labor organizations, addressed
the House in relation to the committee jurisdiction of the bill. The
bill had originally been referred to the House Committee on Military
Affairs, but Mr. May obtained unanimous consent that the bill be
rereferred to the Committee on the Judiciary.
---------------------------------------------------------------------------
16. 90 Cong. Rec. 4323, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 10.5 In the 91st Congress, the House rules were amended to confer
on the Committee on Standards of Official Conduct jurisdiction over
the raising, reporting, and use of campaign contributions for House
candidates.
On July 8, 1970,(17) the Committee on Rules reported
House Resolution 1031, amending the rules of the House in relation to
the jurisdiction of the Committee on Standards of Official Conduct over
campaign contributions. The resolution, as passed by the House,
conferred on that committee jurisdiction over the raising, reporting,
and use of campaign contributions for candidates for the House. The
committee was also given jurisdiction to investigate such matters and
to report findings to the House.
---------------------------------------------------------------------------
17. 116 Cong. Rec. 23136-41, 91st Cong. 2d Sess.
This jurisdiction was transferred to the Committee on House
Administration in the 94th Congress (H. Res. 5, Jan. 14, 1975).
---------------------------------------------------------------------------
[[Page 912]]
Clerk's Role Under Election Campaign Act
Sec. 10.6 A class action was brought against the Clerk claiming that he
had failed to comply with the Federal Election Campaign Act of 1971
and challenging the price of copies of reports filed thereunder.
On May 2, 1972, Speaker Carl Albert, of Oklahoma, laid before the
House a communication from the Clerk, advising the House that he had
been named as defendant in a court action instituted by Common Cause,
seeking: (1) a declaratory judgment that the Clerk had failed to comply
with the provisions of the Federal Election Campaign Act of 1971; and
(2) a restraining order to prohibit the Clerk from continuing a price
increase for copies of reports filed under the act and from prohibiting
the plaintiff from using its own duplicating equipment.(18)
---------------------------------------------------------------------------
18. 118 Cong. Rec. 15311, 92d Cong. 2d Sess.
For the court opinion in the suit against the Clerk, see
Common Cause v Jennings, Civil Action 842-72 (D.C. Cir. 1972).
The U.S. District Court entered a restraining order precluding
any increase in the copying cost of 10 cents per page. (The
Committee on House Administration had ordered the Clerk to
raise the price to $1 per page.) The District Court action was
affirmed by the U.S. Court of Appeals for the District of
Columbia without opinion on Dec. 21, 1973.
---------------------------------------------------------------------------
Sec. 10.7 An action was brought in which the plaintiff alleged that the
Clerk of the House and the Secretary of the Senate had failed to
take action against the practice known as ``earmarking'' political
campaign contributions in violation of the Federal Election
Campaign Act of 1971.
In an action brought by Common Cause against the Clerk of the House
and the Secretary of the Senate,(19) the plaintiffs alleged
that the defendants ``unlawfully'' refused ``to take action against
certain practices that insulate candidates from associating with their
actual contributors.'' The plaintiffs characterized the practice of
``earmarking'' as one in which, instead of giving directly to the
candidate, the contributor gives his money to an intermediary political
committee which supports a number of candidates, with the informal but
clearcut agreement that the intermediary committee will pass the gift
on to the candidate named by the original donor.
---------------------------------------------------------------------------
19. See Common Cause v Jennngs, (D.D.C. No. 2379-72).
---------------------------------------------------------------------------
The plaintiffs asserted that this practice violated the Federal
Elec
[[Page 913]]
tion Campaign Act, section 310, which stated ``No person shall make a
contribution in the name of another person, and no person shall
knowingly accept a contribution made by one person in the name of
another person.''
The District Court denied the defendant's motion to dismiss on Mar.
20, 1973. The parties, on May 13, 1974, stipulated that the case be
dismissed without prejudice and that all designated, earmarked
contributions should be reported as such under section 304 together
with the details of the earmarking.
Clerk Authorized to Obtain Counsel
Sec. 10.8 The Speaker laid before the House a communication from the
Clerk, informing the House of the receipt of replies from the
Department of Justice and the United States Attorney for the
District of Columbia in which they agreed to furnish representation
for the Clerk in a civil action relating to the enforcement of
certain election campaign statutes unless a ``divergence of
interest'' should develop between the positions of the Clerk and
the Justice Department.
On Mar. 15, 1972,(20) Speaker Carl Albert, of Oklahoma,
laid before the House various communications from the Clerk of the
House relative to a case later to become known as Nader v Kleindienst.
This case was a class action based on the Federal Corrupt Practices
Act. The plaintiffs sought enforcement of the act, or the appointment
of special prosecutors, and the termination of the alleged Justice
Department policy to only prosecute under the act if so requested by
the Clerk of the House or Secretary of the Senate.
---------------------------------------------------------------------------
20. 118 Cong. Rec. 8470, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: On May 3, 1972, the Clerk received a letter
from the Justice Department stating that a ``divergence of interest''
had developed between the positions of the Clerk and the Justice
Department and requesting the Clerk to obtain other counsel. On May 3,
the House adopted House Resolution 955, authorizing the Clerk to obtain
other counsel in cases brought against him relating to the Corrupt
Practices Act and the Federal Election Campaign Act.(21) (A
similar resolution
[[Page 914]]
adopted in the 93d Congress, House Resolution 92, Jan. 6, 1973, was
later made permanent law by Public Law No. 93-145, 87 Stat. 527.)
---------------------------------------------------------------------------
21. For the communication from the Clerk advising the House of the
original summons, see 118 Cong. Rec. 5024, 92d Cong. 2d Sess.,
Feb. 22, 1972.
---------------------------------------------------------------------------
The United States District Court for the District of Columbia
dismissed the complaint as to the Clerk of the House and Secretary of
the Senate.(22)
---------------------------------------------------------------------------
22. See Nader v Kleindienst, 375 F Supp 1138 (D.D.C. 1972), aff'd, 497
F2d 676.
---------------------------------------------------------------------------
Suit Testing Applicability of Campaign Act
Sec. 10.9 The Speaker laid before the House a communication from the
Clerk, advising that he had been served with a summons and
complaint in a civil action pending in a federal court relating to
the applicability of the Federal Election Campaign Act of 1971 to a
political advertisement prepared by the American Civil Liberties
Union.
On Oct. 5, 1972,(23) Speaker Carl Albert, of Oklahoma,
laid before the House a communication from the Clerk of the House
relative to American Civil Liberties Union v Jennings.
---------------------------------------------------------------------------
23. 118 Cong. Rec. 34040, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
In the case, the Clerk, among others, was named in a challenge to
the constitutionality of the Federal Election Campaign Act of 1971. The
case arose from the refusal of a newspaper to print an allegedly
``political'' advertisement prepared by the ACLU, where the
advertisement contained the name of a Congressman. The U.S. District
Court ruled that the statutory language in question did apply to the
activities of the ACLU, but ``only to committees soliciting
contributions or making expenditures'' for candidates.(1)
---------------------------------------------------------------------------
1. See 366 F Supp 1041 (D.D.C. 1972j. See also United States v The
National Committee for Impeachment, 469 F2d 1135 (2d Cir. Oct.
30, 1972), wherein it was held that an organization printing an
advertisement was not a ``political committee'' required to
file statements and reports under the Federal Election Campaign
Act of 1971.
---------------------------------------------------------------------------
Clerk Authorized to Investigate Violations
Sec. 10.10 The House agreed to a privileged resolution, reported from
the Committee on Rules, establishing a special committee to
investigate and report on campaign expenditures and practices by
candidates for the House, and authorizing the special committee and
the Clerk of the House to jointly investigate alleged violations of
[[Page 915]]
the Federal Election Campaign Act of 1971.
On Mar. 15, 1973,(2) Mr. Richard Bolling, of Missouri,
called up, by direction of the Committee on Rules, House Resolution 279
as privileged. The resolution created a special or select committee to
investigate campaign expenditures.
---------------------------------------------------------------------------
2. 119 Cong. Rec. 7957, 7958, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The resolution authorized joint investigations by the select
committee and by the Clerk of the House, in order to permit the Clerk
to take advantage of the select committee's subpena power in carrying
out his duties under the Federal Election Campaign Act of 1971:
. . . (8) The Clerk of the House of Representatives is
authorized and directed when carrying out assigned responsibilities
under the Federal Election Campaign Act of 1971 that prior to
taking enforcement action thereunder, to initiate a request for
consultation with and advice from the committee, whenever, at his
discretion, election campaign matters arise that are included
within sections (1) through (6) above and may affect the interests
of the House of Representatives.
(9) The committee is authorized and directed to consult with,
advise, and act in a timely manner upon specific requests of the
Clerk of the House of Representatives either when he is so acting
on his own motion or upon a written complaint made to the Clerk of
the House under oath setting forth allegations of fact under the
Federal Campaign Act of 1971. The committee, or a duly authorized
subcommittee thereof, when acting upon the requests of the Clerk
shall consult with him, shall act jointly with him, and shall
jointly investigate such charges as though it were acting on its
own motion, unless, after a hearing upon such complaint, the
committee, or a duly authorized subcommittee thereof, may be either
in executive or in public sessions, but hearings before the
committee when acting jointly shall be public and all order and
decisions and advice given to the Clerk of the House of
Representatives by the committee or a duly authorized subcommittee
thereof shall be public.
For the purpose of this resolution, the committee, or any duly
authorized subcommittee thereof, is authorized to hold such public
hearings, to sit and act at such times and places during the
sessions, recesses, and adjourned periods during the period from
March 1, 1973 through June 6, 1973, of the Ninety-third Congress,
to employ such attorneys, experts, clerical, and other assistants,
to require by subpena or otherwise the attendance of such witnesses
and the production of such correspondence, books, papers, and
documents, to administer such oaths, and to take such testimony as
it deems advisable. Subpenas may be issued under the signature of
the chairman of the committee or any subcommittee, or by any member
designated by such chairman, and may be served by any person
designated by any such chairman or member.
(10) The committee is authorized and directed, when acting on
its own
[[Page 916]]
motion or upon a complaint made to the committee, to report
promptly any and all violations of any Federal or State statutes in
connection with the matters and things mentioned herein to the
Attorney General of the United States in order that he may take
such official action as may be proper. The committee or a duly
authorized subcommittee thereof is authorized and directed when
acting upon the specific request of the Clerk of the House to
render advice promptly in order to give the Clerk of the House of
Representatives the prior benefits of its advice and in order that
he may then take such official action under the Federal Election
Campaign Act of 1971 as the Clerk of the House ofRepresentatives
deems to be proper.(3)
---------------------------------------------------------------------------
3. See also H. Res. 131, 93d Cong. 1st Sess., extending the Special
Committee to Investigate Campaign Expenditures created in the
92d Congress, to enable it to assist the Clerk of the House in
investigating new allegations of violations of federal election
laws.
---------------------------------------------------------------------------
Parliamentarian's Note: This was the ]ast occasion on which a
select committee to investigate campaign expenditures was established.
The Committee on House Administration, with jurisdiction over campaign
practices, also was given jurisdiction over campaign contributions in
the 94th Congress (H. Res. 5, 94th Congress). And in the 94th Congress,
all standing committees, including the Committee on House
Administration, were given the power to issue subpenas whether or not
the House was in session (H. Res. 988, 93d Congress, effective Jan. 3,
1975).
Federal Election Commission, Composition
Sec. 10.11 Under the Federal Election Campaign Act Amendments of 1974,
establishing a Federal Election Commission, both the House and
Senate were required to confirm the nominations of six members of
the commission, two to be appointed by the Speaker on the
recommendations of the Majority and Minority Leaders of the House,
two to be appointed by the President pro tempore of the Senate on
the recommendations of the Majority and Minority Leaders of the
Senate, and two to be appointed by the President.
On Jan. 29, 1975,(4) Speaker Carl Albert, of Oklahoma,
laid before the House a communication from the Majority Leader Thomas
P. O'Neill, Jr., of Massachusetts, and a communication from Minority
Leader John J. Rhodes, of Arizona, each recommending a nominee for
appointment by the Speak
[[Page 917]]
er to serve as members of the Federal Election Commission; the
recommendations were submitted pursuant to section 301(B) of Public Law
No. 93-433, Federal Election Campaign Act Amendments of 1974, creating
the commission and providing for two appointments by the Speaker upon
recommendations of the Majority and Minority Leaders of the House, two
appointments by the President pro tempore upon recommendations of the
Majority and Minority Leaders of the Senate, and two appointments by
the President. The Speaker referred the communications to the Committee
on House Administration, which had considered and reported the public
law in question. On Mar. 6, 1975,(5) the Speaker laid before
the House a communication from the Secretary of the Senate transmitting
the recommendations of the Majority Leader of the Senate, Mike
Mansfield, of Montana, and the Minority Leader of the Senate, Hugh
Scott, of Pennsylvania, for appointments to the Federal Election
Commission by the President pro tempore of the Senate. The
communication was referred to the Committee on House Administration.
And on Mar. 10, 1975,(6) the Speaker laid before the House
two messages from President Gerald R. Ford nominating two persons for
his appointments to the commission; the messages were referred to the
Committee on House Administration.
---------------------------------------------------------------------------
4. 121 Cong. Rec. 1680, 94th Cong. 1st Sess.
5. 121 Cong. Rec. 5537, 5538, 94th Cong. 1st Sess.
6. 121 Cong. Rec. 5870, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
On Mar. 19, 1975,(7) Mr. Wayne L. Hays, of Ohio, called
up by direction of the Committee on House Administration House
Resolution 314, confirming the six nominations for appointment to the
commission, and asked unanimous consent for the immediate consideration
of the resolution (the resolution had no privileged status under the
rules of the House). The House agreed to consider the resolution and
after debate agreed thereto, voting separately on each nominee since a
demand had been made for a division of the question. The Senate later
confirmed all six nominees and the Speaker, the President pro tempore
of the Senate, and the President made their various appointments.
---------------------------------------------------------------------------
7. 121 Cong. Rec. 7344-54, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: The Federal Election Campaign Act
Amendments of 1976, enacted May 11, 1976, as Public Law No. 94-283,
deleted from the Federal Election Campaign Act the provisions for
appointments to the com
[[Page 918]]
mission by the Speaker and President pro tempore and joint House-Senate
confirmation of all nominees, and provided instead for six members to
be appointed by the President with the advice and consent of the Senate
(with the Clerk of the House and Secretary of the Senate to serve ex
officio without voting rights, as in the 1974 amendments). The United
States Supreme Court had held, in the case of Buckley v Valeo, 424 U.S.
1 (1976) (decided Jan. 30, 1976), that the Federal Election Commission
could not exercise the full range of administrative and enforcement
powers granted to it in the 1976 amendments, since the method of
selecting members of the commission provided in the 1976 act violated
the ``Appointment Clause'' of the Constitution, vesting in the
President the sole power to appoint, with the advice and consent of the
Senate, officers of the United States (U.S. Const. art. II, Sec. 2,
clause 2). The Supreme Court had stayed that portion of its ruling for
50 days in order to avoid interrupting enforcement of the Election
Campaign Act while the Congress considered whether remedial legislation
was necessary (see H. Rept. No. 94-917, Mar. 17, 1976, 94th Cong. 2d
Sess., a report by the Committee on House Administration on H.R. 12406,
the House counterpart to S. 3065 which was enacted as the Federal
Election Campaign Act Amendments of 1976).
Federal Election Commission, Congressional Disapproval of Regulations
Sec. 10.12 The Federal Election Campaign Act, as amended, allows the
House or the Senate, whichever is appropriate, to disapprove
certain regulations proposed by the Federal Election Commission
dealing with campaign reports and statements required of candidates
for the House or Senate, and allows both Houses to disapprove
reports and statements required of Presidential candidates.
The Federal Election Campaign Act Amendments of 1974, Public Law
No. 93-443, section 209, amended the act to require the Federal
Election Commission to transmit to the House or Senate, whichever is
appropriate, proposed regulations dealing with reporting requirements
for candidates for the House in question. Such regulations may be
promulgated by the commission if the House or Senate, as the case may
be, does not disapprove such regulations within 30 legislative days.
[[Page 919]]
In the case of proposed regulations dealing with reporting requirements
for Presidential candidates, both the House and the Senate may
disapprove.
On Oct. 22, 1975,(8) Mr. John Young, of Texas, called up
by direction of the Committee on Rules House Resolution 800, providing
for the consideration in the House of House Resolution 780, reported
from the Committee on House Administration and disapproving a
regulation proposed by the Federal Election Commission; a special order
from the Committee on Rules was necessary since the Federal Election
Campaign Act Amendments of 1974 did not provide a privileged procedure
for considering such disapproval resolutions in the House. The House
adopted the special order and then adopted the disapproval resolution.
(The disapproval resolution had previously failed of passage under
suspension of the rules on Oct. 20.)
---------------------------------------------------------------------------
8. 121 Cong. Rec. 33662, 33663, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
The Federal Election Campaign Act Amendments of 1976, Public Law
No. 94-283, section 110(b), amended the act to provide that whenever a
committee of the House reports a disapproval resolution provided for by
the act, ``it is at any time thereafter in order (even though a
previous motion to the same effect has been disagreed to) to move to
proceed to the consideration of the resolution. The motion is highly
privileged and is not debatable. An amendment to the motion is not in
order, and it is not in order to move to reconsider the vote by which
the motion is agreed to or disagreed to.'' The 1976 law a]so redefined
a ``rule or regulation'' which could be disapproved as a ``provision or
series of interrelated provisions stating a single separable rule of
law.''
CHAPTER 8
Elections and Election Campaigns
C. CAMPAIGN PRACTICES
Sec. 11. Campaign Practices and Contested Elections
[Note: For specific election contests, see chapter 9, infra.]
In judging contested elections, the Committee on House
Administration or its subcommittee on elections, and then the House,
take into account alleged violations of federal or state election
campaign laws and the effect of such violations on the outcome of the
election. Such statutes are not binding on the House in exercising its
function of judging the elections of its Members, since the
Constitution gives the House the sole power to so judge.(9)
---------------------------------------------------------------------------
9. See House Rules and Manual Sec. Sec. 47-50 (comments to U.S. Const.
art. I, Sec. 5, clause 1) (1973).
---------------------------------------------------------------------------
[[Page 920]]
The House generally does not unseat a Member for alleged campaign
irregularities if he possesses a proper certificate of election and
where it has been found in an election contest that any violations of
the applicable statute were unintentional and not
fraudulent.(10) Thus, failure to file timely and accurate
expenditure reports with the Clerk of the House does not necessarily
deprive a contestee of his seat, and the Committee on House
Administration will consider evidence of mitigating circumstances and
of negligence as opposed to fraud.(11)
---------------------------------------------------------------------------
10. See Sec. 11.1, infra.
11. See Sec. 11.5, infra.
---------------------------------------------------------------------------
The House has generally considered the election contest as the
proper procedure by which a losing candidate can challenge the election
of the nominee for alleged campaign improprieties.(12)
However, violations of the Corrupt Practices Act could also be
litigated in civil court proceedings in a proper case.(13)
---------------------------------------------------------------------------
12. See Ch. 9, infra. See Sec. 12, infra, for expulsion, exclusion and
censure in relation to campaign practices.
Congressional committees have investigated allegations of
improper orillegal campaign activities (see Sec. Sec. 13, 14,
infra).
13. See Pub. L. No. 92-225, Sec. 308(d)(1).
---------------------------------------------------------------------------
In presenting an election contest based on campaign irregularities
before a House committee, the contestant has the burden of proof to
establish by a fair preponderance of the evidence that (1) the
contestee had violated a state or federal campaign practices statute,
and (2) that any such alleged violations directly or indirectly
prevented the contestant from receiving a majority of the votes
cast.(14)
---------------------------------------------------------------------------
14. H. Rept. No. 1783, to accompany H. Res. 427, reported Mar. 14,
1940, 86 Cong. Rec. 2915, 2916, 76th Cong. 3d Sess., in the
Scott v Eaton contest for the 18th Congressional District of
California. -------------------
---------------------------------------------------------------------------
Negligence in Reporting Campaign Expenditures
Sec. 11.1 An elections committee has found that negligence on the part
of a candidate in preparing expenditure accounts to be filed with
the Clerk should not deprive him of his seat in the House, absent
fraud, where he received a substantial majority of the votes cast.
For example, on Jan. 31, 1944,(15) an elections
committee
[[Page 921]]
reported (H. Rept. No. 1032) in the contested election case of Thill v
McMurray, for the Fifth Congressional District of Wisconsin. The
committee recommended that the contestee be declared entitled to the
seat despite irregularities in reporting expenditures to the Clerk. The
committee found that the contestee had received a substantial majority
of the votes for his seat and should not be deprived of his seat for
negligent and not fraudulent preparation of expenditure accounts by
himself and his attorney. The committee did admonish the contestee in
its report for signing under oath an expenditure statement without
being familiar with its contents and irregularities.(16)
---------------------------------------------------------------------------
15. 90 Cong. Rec. 962, 78th Cong. 2d Sess. See also 90 Cong. Rec. 3252,
3253, 78th Cong. 2d Sess., Mar. 29, 1944, where the Committee
on Elections No. 1 recommended that an election contest be
dismissed where the contestee had failed to correctly file
reports under the Corrupt Practices Act, but where such
reporting was merely negligent and not purposeful. The House
adopted H. Res. 490, dismissing the contest.
16. See also the report of an elections committee in the case of
Schafer v Wasielewski, Fourth Congressional District of
Wisconsin, where expenditure accounts were negligently
prepared. The report stated that the ``committee does not
condone such negligence.'' 90 Cong. Rec. 3252, 3253, 78th Cong.
2d Sess., Mar. 29, 1944 (report printed in the Record).
---------------------------------------------------------------------------
The House agreed without debate to a resolution (H. Res. 426)
dismissing the contest.(17)
---------------------------------------------------------------------------
17. 90 Cong. Rec. 933, 78th Cong. 2d Sess., Jan. 31, 1944.
---------------------------------------------------------------------------
Distribution of Campaign Literature
Sec. 11.2 A pre-election irregularity, such as unauthorized
distribution of campaign literature, will not be attributed to a
particular candidate where he did not participate therein.
On Sept. 8, 1959,(18) the House agreed to House
Resolution 380, reported by the Committee on House Administration and
called up by Mr. Robert T. Ashmore, of South Carolina; the resolution
declared Mr. T. Dale Alford entitled to a seat from the Fifth
Congressional District of Arkansas following an investigation by the
committee (H. Rept. No. 1172). The committee found that although
campaign literature had been improperly distributed during the
election, such distribution was not authorized by or participated in by
Mr. Alford.(19)
---------------------------------------------------------------------------
18. 105 Cong. Rec. 18610, 18611, 86th Cong. 1st Sess.
19. For a description of the pre-election irregularities investigated
by the Committee on House Administration, pursuant to the
recommendation of the Select Committee on Campaign Expenditures
of the 85th Congress, see the remarks of Mr. Thomas P. O'Neill,
Jr. (Mass.) at 105 Cong. Rec. 3432-34, 86th Cong. 1st Sess.,
Mar. 5, 1959.
---------------------------------------------------------------------------
[[Page 922]]
Sec. 11.3 An elections committee found no evidence that contestee
financed extra editions of a magazine which supported his
candidacy.
On Mar. 19, 1952,(20) an elections committee reported
(H. Rept. No. 1599) in the contested election case of Macy v Greenwood
for the First Congressional District of New York. The committee found
no evidence that the contestee financed extra editions of a magazine
which had supported his candidacy, and recommended that the contestee
be declared entitled to the seat.
---------------------------------------------------------------------------
20. 98 Cong. Rec. 2545, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
The House adopted House Resolution 580 declaring the contestee
entitled to his seat.(1)
---------------------------------------------------------------------------
1. 98 Cong. Rec. 2517, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Expenditures by Political Committees and Volunteers
Sec. 11.4 An elections committee may consider evidence to determine
whether certain expenditures were made by a ``voluntary'' committee
or ``personal'' campaign committee, as defined by state law.
On Mar. 29, 1944,(2) the House agreed to House
Resolution 490, dismissing the contested election case of Schafer v
Wasielewski for the Fourth Congressional District of Wisconsin,
pursuant to the report of the Committee on Elections No. 1. The report
recommended such dismissal on the ground that although the contestee's
expense reports disclosed expenditures in excess of amounts permitted
by law, certain of those expenses were not campaign expenses
attributable to the candidate himself under Wisconsin state law. The
report, which was printed in the Record, stated in part as follows:
---------------------------------------------------------------------------
2. 90 Cong. Rec. 3252, 3253, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
The Wisconsin statutes limit to $875 the amount of money that
can be spent by a candidate for Congress in the general election.
The Wisconsin statutes, however, place no limitation upon receipts
and expenditures of individuals or groups that might voluntarily
interest themselves in behalf of a candidate.
Thaddeus F. Wasielewski filed with the Clerk of the House of
Representatives on November 5, 1942, a statement, as required by
Federal law, showing receipts of $1,689 and total expenditures of
$1,172.
On December 17, 1942, contestant filed notice of contest of the
election of Thaddeus F. Wasielewski in which he pointed out that
the sum set forth in the statement filed by Thaddeus F. Wasielewski
with the Clerk of the House of Representatives was in excess of
expenditures permitted under Wisconsin law and the Federal Corrupt
Practices Act, and that Thaddeus F.
[[Page 923]]
Wasielewski was, therefore, in violation of the statutes of the
State of Wisconsin and of the Federal statutes.
On its face, the statement of receipts and expenditures filed
by contestee with the Clerk of the House of Representatives
violates the laws of Wisconsin and the Federal Corrupt Practices
Act. The direct evidence, however, indicates that the contributions
listed were paid to the Wasielewski for Congress Club and the
expenditures made by that organization, which was shown to be a
voluntary committee rather than a personal campaign committee as
defined by the laws of Wisconsin. . . .
Under all the circumstances, the committee is of the opinion
that Mr. Wasielewski, who received a substantial plurality of
votes, approximately 17,000, in the general election of November 3,
1942, over Mr. Schafer, his nearest opponent, should not be denied
his seat in the House of Representatives on account of the errors
made in the statement filed by Mr. Wasielewski with the Clerk of
the House of Representatives.
Effect of Mitigating Circumstances
Sec. 11.5 Mitigating circumstances may be taken into account by a
committee on elections in determining whether to recommend to the
House that a seated Member or Delegate be unseated for failure to
comply with the Corrupt Practices Act which requires filing with
the Clerk complete and itemized accounts of expenditures.
On May 21, 1936,(3) the Committee on Elections
recommended in its report (H. Rept. No. 2736) on the contested election
case of McCandless v King (for the seat of Delegate from Hawaii) that
the contestee, Samuel Wilder King, be declared entitled to the seat,
notwithstanding a failure to file accounts of expenditures as required
by law.
---------------------------------------------------------------------------
3. 80 Cong. Rec. 7765, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The committee stated in its report that it had found certain
mitigating circumstances to be present in the case. The report stated
that such circumstances could include evidence of personal character,
lack of experience as a candidate for public office, and the nature of
the expenditures.
The committee also found that although the contestee had failed to
comply with the Corrupt Practices Act, which required reporting within
30 days of the election to the Clerk of the House a complete and
itemized account of expenditures, there were circumstances in
mitigation of such failure.
The committee found that the contestee had, within the 30 days,
communicated certain itemized
[[Page 924]]
expenditures to the Clerk and indicated his intention once in
Washington to complete and file the required forms.
On June 2, 1936, the House declared the contestee entitled to his
seat.(4)
---------------------------------------------------------------------------
4. 80 Cong. Rec. 8705, 74th Cong. 2d Sess. (H. Res. 521).
---------------------------------------------------------------------------
CHAPTER 8
Elections and Election Campaigns
C. CAMPAIGN PRACTICES
Sec. 12. Expulsion, Exclusion, and Censure
[Note: For full discussion of censure and expulsion, see chapter
12, infra.]
Under article I, section 5, clause 2 of the United States
Constitution, the House may punish its Members and may expel a Member
by a vote of two-thirds.
In the 90th Congress, the Senate censured a Member in part for
improper use and conversion of campaign funds.(5) And the
Committee on House Administration recommended in a report in the 74th
Congress that a Member or Delegate could be censured for failure to
comply with the Corrupt Practices Act.(6) However, the House
and the Senate have generally held that a Member may not be expelled
for conduct committed prior to his election.(7)
---------------------------------------------------------------------------
5. See Sec. 12.3, infra.
6. See Sec. 12.4, infra.
7. See 2 Hinds' Precedents Sec. Sec. 1284-1289; 6 Cannon's Precedents
Sec. Sec. 56, 238.
For discussion of the House as judge of qualifications for
seats, see Ch. 7, supra.
---------------------------------------------------------------------------
As to exclusion--or denial by the House of the right of a Member-
elect to a seat--by majority vote, the House has the power to judge
elections and to determine that no one was properly elected to a seat.
If violations of the election campaign statutes are so extensive or
election returns so uncertain as to render an election void, the House
may deny the right to a seat.(8)
---------------------------------------------------------------------------
8. See Parliamentarian's note in Sec. 12.2,
infra. -------------------
---------------------------------------------------------------------------
Expulsion
Sec. 12.1 In the 77th Congress, the Senate failed to expel, such
expulsion requiring a two-thirds vote, a Senator whose
qualifications had been challenged by reason of election fraud and
of conduct involving moral turpitude.
On Jan. 3, 1941, at the convening of the 77th Congress, Mr. William
Langer, of North Dakota, took the oath of office, despite charges from
the citizens of his state recommending he be denied a congressional
seat because of campaign fraud and past conduct involving moral
turpitude.(9)
---------------------------------------------------------------------------
9. 87 Cong. Rec. 3, 4, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
[[Page 925]]
The petition against Senator Langer charged: control of election
machinery; casting of illegal election ballots; destruction of legal
election ballots; fraudulent campaign advertising; conspiracy to avoid
federal law; perjury; bribery; fraud; promises of political
favors.(10)
---------------------------------------------------------------------------
10. 88 Cong. Rec. 2077-80, 77th Cong. 2d Sess., Mar. 9, 1942.
---------------------------------------------------------------------------
After determining that a two-thirds vote was necessary for
expulsion, the Senate failed to expel Senator Langer.(11)
---------------------------------------------------------------------------
11. 88 Cong. Rec. 3064, 77th Cong. 2d Sess., Mar. 27, 1942.
---------------------------------------------------------------------------
Exclusion
Sec. 12.2 A Senator-elect, whom Members of the Senate sought to exclude
from the 80th Congress for corrupt campaign practices and past
abuse of congressional office, died while his qualifications for a
seat were still undetermined.
On Jan. 4, 1947, at the convening of the 80th Congress, the
credentials of Senator-elect Theodore G. Bilbo, of Mississippi, were
laid on the table and never taken up again due to his intervening
death.(12)
---------------------------------------------------------------------------
12. 93 Cong. Rec. 109, 80th Cong. 1st Sess. For the announcement of
Nov. 17, 1947, concerning Theodore G. Bilbo's death, see 93
Cong. Rec. 10569, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
The right to be sworn of Senator-elect Bilbo had been challenged
through Senate Resolution 1, which read in part:
Whereas the Special Committee To Investigate Senatorial
Campaign Expenditures, 1946, has conducted an investigation into
the senatorial election in Mississippi in 1946, which investigation
indicates that Theodore G. Bilbo may be guilty of violating the
Constitution of the United States, the statutes of the United
States, and his oath of office as a Senator of the United States in
that he is alleged to have conspired to prevent citizens of the
United States from exercising their constitutional rights to
participate in the said election; and that he is alleged to have
committed violations of Public Law 252, Seventy-sixth Congress,
commonly known as the Hatch Act; and
Whereas the Special Committee To Investigate the National
Defense Program has completed an inquiry into certain transactions
between Theodore G. Bilbo and various war contractors and has found
officially that the said Bilbo, ``in return for the aid he had
given certain war contractors and others before Federal
departments, solicited and received political contributions,
accepted personal compensation, gifts, and services, and solicited
and accepted substantial amounts of money for a personal charity
administered solely by him'' . . . and . . . ``that by these
transactions Senator Bilbo misused his high office and violated
certain Federal statutes''; and
Whereas the evidence adduced before the said committees
indicates that
[[Page 926]]
the credentials for a seat in the Senate presented by the said
Theodore G.Bilbo are tainted with fraud and corruption; and that
the seating of the said Bilbo would be contrary to sound public
policy, harmful to the dignity and honor of the Senate, dangerous
to the perpetuation of free Government and the preservation of our
constitutiSnal liberties. . . .(13)
---------------------------------------------------------------------------
13. 93 Cong. Rec. 7, 8, 80th Cong. 1st Sess., Jan. 3, 1947.
---------------------------------------------------------------------------
Parliamentarian's Note: The Supreme Court has held, in the case of
Powell v. McCormack, 395 U.S. 486 (1969), that a Member-elect of the
House could not be excluded, by a majority vote, other than for failure
to meet the express constitutional qualifications for the office. But
since the House or Senate is the judge of elections and returns under
the U.S. Constitution (art. I, Sec. 5, clause 1), and has the power to
regulate elections (art. I, Sec. 4, clause 1), the House or Senate may
determine by majority vote that a candidate was not validly elected.
Censure
Sec. 12.3 The Senate Select Committee on Standards and Conduct reported
a resolution censuring a Senator, in the 90th Congress, for his
personal use of campaign contributions.
On Apr. 27, 1967, Senator John Stennis, of Mississippi, Chairman of
the Senate Select Committee on Standards of Official Conduct, reported
Senate Resolution 112, censuring Senator Thomas J. Dodd, of
Connecticut, for having engaged in a course of conduct over five years
of exercising his power and influence as a Senator to obtain and to use
for personal benefit funds obtained from the public through political
testimonials and political campaigns.(14)
---------------------------------------------------------------------------
14. 113 Cong. Rec. 10977, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
The resolution, which was laid before the Senate on June 13,
1967,(15) accompanied by Senate Report No. 193, read as
follows:
---------------------------------------------------------------------------
15. 113 Cong. Rec. 15663, 90th Cong. 1st Sess. (resolution laid before
the Senate). For discussion thereof, see 113 Cong. Rec. 15663,
15735, 15773, 15998, 16104, 16269, 16348, 16560, 16976, 16978,
17005, 90th Cong. 1st Sess., June 13-23, 1967.
---------------------------------------------------------------------------
Resolved, That it is the judgment of the Senate that the
Senator from Connecticut, Thomas J. Dodd, for having engaged in a
course of conduct over a period of five years from 1961 to 1965 of
exercising the influence and power of his office as a United States
Senator, as shown by the conclusions in the investigations by the
Select Committee on Standards and Conduct,
(a) to obtain, and use for his personal benefit, funds from
the public through political testimonials and a political
campaign, and
(b) to request and accept reimbursements for expenses from
both
[[Page 927]]
the Senate and private organizations for the same travel,
deserves the censure of the Senate; and he is so censured for his
conduct, which is contrary to accepted morals, derogates from the
public trust expected of a Senator, and tends to bring the Senate
into dishonor and disrepute.
On June 23, 1967, the Senate adopted the first portion of the
resolution of censure relating to the use of political funds by Senator
Dodd for private purposes: (16)
---------------------------------------------------------------------------
16. 113 Cong. Rec. 17011, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
Resolved, (A) That it is the judgment of the Senate that the
Senator from Connecticut, Thomas J. Dodd, for having engaged in a
course of conduct over a period of five years from 1961 to 1965 of
exercising the influence and power of his office as a United States
Senator, as shown by the conclusions in the investigation by the
Select Committee on Standards and Conduct, to obtain, and use for
his personal benefit, funds from the public through political
testimonials and a political campaign, deserves the censure of the
Senate; and he is so censured for his conduct, which is contrary to
accepted morals, derogates from the public trust expected of a
Senator, and tends to bring the Senate into dishonor and disrepute.
The Senate then proceeded to consider and agree to the remainder of
the resolution, censuring Senator Dodd for improper use and
solicitation of travel funds.
Sec. 12.4 A committee on elections recommended that a contestee would
be subject to censure by the House but not to forfeiture of his
seat where there were mitigating circumstances involved in his
violation of the Corrupt Practices Act.
On May 21, 1936,(17) a committee on elections reported
in the election contest case of McCandless v King, for the seat of
Delegate from Hawaii. In its report, House Report No. 2736, the
committee concluded that there were mitigating circumstances in the
contestee's failure to fully comply with the reporting requirements of
the Corrupt Practices Act. The committee recommended that Mr. Samuel
Wilder King be declared entitled to the seat but stated in its report
that Mr. King could be subject to censure by the House.
---------------------------------------------------------------------------
17. 80 Cong. Rec. 7765, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
On June 2, 1936, the House adopted House Resolution 521, declaring
the contestee, Mr. King, entitled to the seat.(18)
---------------------------------------------------------------------------
18. 80 Cong. Rec. 8705, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
CHAPTER 8
Elections and Election Campaigns
C. CAMPAIGN PRACTICES
Sec. 13. Investigations by Standing Committees
Investigations of specific elections or election practices are usu
[[Page 928]]
ally undertaken by the Committee on House
Administration.(19) Such investigations have been undertaken
pursuant to the statutory electioncontest procedures or under the
general investigatory power conferred by the House.(20)
---------------------------------------------------------------------------
19. See Sec. 13.4, infra. Investigations conducted under the election
contest statutes, see generally Ch. 9, infra.
20. See also Sec. 13.2, infra, where the House authorized the committee
to investigate elections where contests had not been formally
presented.
---------------------------------------------------------------------------
The House may by resolution authorize the Committee on House
Administration to investigate the right of a Member-elect to his
seat,(1)~ where his right is impeached by charges and
allegations of improper campaign conduct and of election
irregularities.
---------------------------------------------------------------------------
1. See Sec. Sec. 13.2-13.4, infra.
Challenging the right to be sworn and referring the right
to a committee for investigation, see Ch. 2, supra.
---------------------------------------------------------------------------
Investigations have also been undertaken by select committees
created to review election campaigns and proceedings. In recent
Congresses, a select committee to investigate campaign expenditures has
been created at the end of one Congress to investigate pending
elections and to report findings to the succeeding
Congress.(2)
---------------------------------------------------------------------------
2. See Sec. 14, infra.
A select committee to investigate campaign expenditures has
recommended to the succeeding Congress that the right of a
Member-elect to his seat be reserved for decision and
investigated (see Sec. 13.5, infra).
Committees, their jurisdiction, powers and procedures, see
Ch. 17, infra.
---------------------------------------------------------------------------
The Committee on Standards of Official Conduct has some
jurisdiction over the investigation of campaign
contributions.(3)
---------------------------------------------------------------------------
3. See Sec. 13.6, infra. -------------------
---------------------------------------------------------------------------
Necessary Parties
Sec. 13.1 The House dismissed an election contest because the
individual filing the notice was not a candidate for the House,
although a Member objected that the House in such a case had power
to refer the matter to a standing or a special committee in order
to investigate charges.
On Jan. 19, 1965,(4) a resolution was under
consideration declaring an individual incompetent to bring a contest
for a seat in the House, since the individual filing notice was not a
candidate for the
[[Page 929]]
House and was not a proper party to bring the contest:
---------------------------------------------------------------------------
4. 111 Cong. Rec. 951-57, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
H. Res. 126
Whereas James R. Frankenberry, a resident of the city of
Bronxville, New York, in the Twenty-Fifth Congressional District
thereof, has served notice of contest upon Richard L. Ottinger, the
returned Member of the House from said district, of his purpose to
contest the election of Richard L. Ottinger; and
Whereas it does not appear that said James R. Frankenberry was
a candidate for election to the House of Representatives from the
Twenty-Fifth Congressional District of the State of New York, at
the election held November 3, 1964: Therefore be it
Resolved, That the House of Representatives does not regard the
said James R. Frankenberry as a person competent to bring a contest
for a seat in the House and his notice of contest, served upon the
sitting Member, Richard L. Ottinger, is hereby dismissed.
Mr. Carl Albert, of Oklahoma, spoke in favor of the resolution:
Mr. Albert: Mr. Speaker, I yield myself such time as I might
consume.
Mr. Speaker, the purpose of this resolution is to dismiss a
contest brought against the gentleman from New York [Mr. Ottinger].
The notice of contest was given by letter dated December 19, 1964,
by Mr. James R. Frankenberry, of 40 Woodland Avenue, Bronxville, N.
Y. Mr. Frankenberry attempts to initiate this contest under the
provisions of Revised Statutes 105 to 130, as amended, 2 United
States Code 201-226 inclusive.
Mr. Speaker, the House is the exclusive judge of the election,
returns, and qualifications of its Members under article I, section
5, of the Constitution of the United States.
The application of the statutes in question is justifiable by
the House and by the House alone--In re Voorhis, 296 Federal Report
673.
Mr. Speaker, under the law and under the precedents, Mr.
Frankenberry is not a proper party to contest the election of the
gentleman from New York [Mr. Ottinger]. He is not a proper
contestant within the applicable statutes, because he would not be
able, if he were successful, to establish his right to a seat in
the House. The contest involving Locke Miller and the gentleman
from Ohio, Mr. Michael Kirwan, in 1941, is directly in point, as
reported in the Congressional Record, volume 87, part 1, page 101.
. . .
Mr. Speaker, the issue in the case brought by Locke Miller and
the notice filed by Mr. Frankenberry are identical except that in
the former case Locke Miller had been a candidate for the disputed
office in the primary. The statutes under which this proceeding is
initiated do not provide, and there is no case on record that we
have been able to find to the contrary, that a person not a party
to an election contest is eligible to challenge an election under
these statutes.
Clearly under the precedent to which I have made reference, Mr.
Frankenberry is not a contestant for a seat in the House, and his
contest should be dismissed.
Therefore, Mr. Speaker, I urge adoption of the resolution.
Mr. Charles E. Goodell, of New York, arose to object to the
resolution, stating:
[[Page 930]]
. . . [T]he Corrupt Practices Act provides specifically for the
taking of depositions and testimony which can be submitted to the
House Committee on Administration. . . .
I would hope, therefore, that the House will defeat this
resolution and that the matter will then go to the House
Administration Committee for proper and deliberate action where the
facts may be presented and where we may consider whether the Member
should actually in this case be seated permanently.
There are many precedents with reference to the campaign
contributions and excessive expenditures where the House has denied
a Member a seat. Certainly, whatever our party, we must recognize
in this kind of a situation that the reputation and dignity of the
U.S. House of Representatives is involved. We should see to it that
a full and complete hearing is held.
Mr. James C. Cleveland, of New Hampshire, addressed the House,
following the conclusion of Mr. Goodell's remarks, citing many
precedents to the effect that any person could challenge the election
of a Member and that such challenge should be referred to the Committee
on House Administration, to consider the facts and to determine whether
the Member should finally be seated.
The House adopted the resolution.
House Authorization for Committee Investigations
Sec. 13.2 The Committee on House Administration was authorized by the
House to conduct an investigation during adjournments or recesses
of election contests which had not been formally presented to the
House.
On July 25, 1947,(5) the Committee on House
Administration was given investigatory authority in relation to certain
election-contest cases in the 80th Congress which had not yet been
formally presented to the House:
---------------------------------------------------------------------------
5. 93 Cong. Rec. 10210, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Committee on House Administration--Contested Elections
Mr. [Ralph A.] Gamble [of New York]: Mr. Speaker, by direction
of the Committee on House Administration, I offer a privileged
resolution (H. Res. 337) and ask for its immediate consideration.
The Clerk read the resolution, as follows:
Resolved, That notwithstanding any adjournment or recess of
the Eightieth Congress, testimony and papers received by the
Clerk of the House in any contested-election case shall be
transmitted by the Clerk to the Speaker for reference to the
Committee on House Administration in the same manner as though
such adjournment or recess had not occurred: Provided, That any
such testimony and papers referred by the Speaker shall be
printed as House documents of the next succeeding session of
the Congress.
The resolution was agreed to. . . .
[[Page 931]]
Committee on House Administration--Contested-Election Cases
Mr. Gamble: Mr. Speaker, by direction of the Committee on House
Administration, I offer a privileged resolution (H. Res. 338) and
ask for its immediate consideration.
The Clerk read the resolution, as follows:
Resolved, That notwithstanding any adjournments or recesses
of the first session of the Eightieth Congress, the Committee
on House Administration is authorized to continue its
investigations in the contested-election cases of Mankin
against Davis, Lowe against Davis, and Wilson against Granger.
For the purpose of making such investigations the committee, or
any subcommittee thereof, is authorized to sit and act during
the present Congress at such times and places within the United
States, whether the House is in session, has recessed, or has
adjourned, to hold such hearings, and to require, by subpena or
otherwise, the attendance and testimony of such witnesses and
the production of such books, records, correspondence,
memoranda, papers, and documents, as it deems necessary.
Subpenas may be issued under the signature of the chairman of
the committee or any member of the committee designated by him,
and may be served by any person designated by such chairman or
member.
The resolution was agreed to. . . .
Committee on House Administration--Contested-Election Cases
Mr. [Karl M.] LeCompte [of Iowa]: Mr. Speaker, I offer a
privileged resolution (H. Res. 339) to implement the resolution
just passed and ask for its immediate consideration.
The Clerk read the resolution, as follows:
Resolved, That the expenses of the investigations to be
conducted pursuant to House Resolution 338, by the Committee on
House Administration, acting as a whole or by subcommittee, not
to exceed $5,000, including expenditures for the employment of
investigators, attorneys, and clerical, stenographic, and other
assistants, shall be paid out of the contingent fund of the
House on vouchers authorized by such committee or subcommittee,
signed by the chairman of such committee, or subcommittee, and
approved by the Committee on House Administration.
The resolution was agreed to.
Parliamentarian's Note: Under Rule XI, clause 2(m) as amended
effective Jan. 3, 1975 (H. Res. 988, 93d Cong. 2d Sess.), all standing
committees of the House now have the power to issue subpoenas whether
the House is in session, has recessed, or has adjourned.
Sec. 13.3 A resolution providing for the subpena of witnesses and the
procurement of ballot boxes and election records, in an
investigation of a contested election case, is presented as a
matter of privilege.
On Jan. 7, 1930,(6) House Resolution 113 was offered as
privi
[[Page 932]]
leged. The resolution related to the subpena of witnesses and the
procurement of ballot boxes, election returns, and election record
books in a committee investigation of a contested election case. After
a Member arose to object to the privileged status of the resolution,
Speaker Nicholas Longworth, of Ohio, ruled that the resolution was a
privileged matter, as follows:
---------------------------------------------------------------------------
6. 72 Cong. Rec. 1187, 71st Cong. 2d Sess. See also 3 Hinds'
Precedents Sec. 2586, where a resolution providing for an
investigation of the election of a Member was ruled a question
of privilege.
---------------------------------------------------------------------------
The Speaker: The question is on agreeing to the resolution.
Mr. [William H.] Stafford [of Wisconsin]: Mr. Speaker, I
reserve a point of order on the resolution. I do not think it is
privileged.
Mr. [Willis G.] Sears [of Nebraska]: Mr. Speaker, I move the
adoption of the resolution.
Mr. [Bertrand H.] Snell [of New York]: I would like to ask the
gentleman a question about the resolution. Is this the usual form
or the usual action that the Committees on Elections take to get
people before them? I supposed there was just a general form for
subpoenaing witnesses and that was all that was necessary. I have
never known of a resolution of just this character.
The Speaker: As the Chair caught the reading of the resolution,
it not only provides for the presence of witnesses, but also
provides for bringing before them the ballot boxes, and so forth.
The Chair thinks it would be necessary to have such a resolution to
bring that about.
Mr. [Cassius C.] Dowell [of Iowa]: The resolution, Mr. Speaker,
is certainly in order.
The Speaker: The Chair thinks it is a privileged matter.
Mr. Snell: I suspect it is a privileged matter, coming from a
Committee on Elections, but what I had in mind was whether this was
the usual form under which we proceed in such cases.
The Speaker: The Chair can not recall an immediate precedent,
but the Chair would think this is the proper way to cover the
appearance of witnesses under the circumstances set forth.
Sec. 13.4 Where the Committee on House Administration was authorized to
investigate the right of two contestants to a seat and ordered a
recount of the ballots under its general investigatory power, final
compensation to the contestants was paid out of the contingent
fund, since the recount was not undertaken under the election
contest statutes.
On Jan. 3, 1961,(7) the House adopted House Resolution
1, offered by Mr. Clifford Davis, of Tennessee, providing that the
question of the right of either of the two contestants for a seat from
Indiana (J. Edward Roush
[[Page 933]]
and George O. Chambers) be referred to the Committee on House
Administration, and providing that until that committee had reported,
neither could take the oath of office.
---------------------------------------------------------------------------
7. 107 Cong. Rec. 23-25, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
During its investigation, the Committee on House Administration
conducted a recount of all the ballots cast in the election, under its
general power to investigate rather than under the election contest
statutes.(8)
---------------------------------------------------------------------------
8. See 107 Cong. Rec. 10160, 87th Cong. 1st Sess., June 13, 1961.
---------------------------------------------------------------------------
On June 13, 1961, the House confirmed the right of Mr. Roush to the
seat, pursuant to the report of the committee (H. Res. 339). The House
adopted a privileged resolution, House Resolution 340, providing for
expenditures from the contingent fund to pay the salary and certain
expenses to the duly elected Member and the payment of certain expenses
incurred by the contestant. They were not reimbursed for expenses
pursuant to the election contest statutes since the recount had been
ordered by the Committee on House Administration under its
investigative power.(9)
---------------------------------------------------------------------------
9. See H. Res. 340, 107 Cong. Rec. 10160 (June 13, 1961) and 10391
(June 14, 1961), 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Election Investigation Resolutions as Privileged
Sec. 13.5 A resolution from the Committee on House Administration
affirming the right of a Member to his seat, after investigation of
alleged fraud and dishonesty in his election, is reported and
considered as privileged.
On Sept. 8, 1959,(10) Mr. Robert T. Ashmore, of South
Carolina, reported as privileged House Resolution 380 from the
Committee on House Administration, relating to the right of a Member to
his seat. The House adopted the resolution:
---------------------------------------------------------------------------
10. 105 Cong. Rec. 18610, 18611, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Whereas the Committee on House Administration has concluded its
investigation of the election of November 4, 1958, in the Fifth
Congressional District of Arkansas pursuant to House Resolution 1;
and
Whereas such investigation reveals no cause to question the
right of Dale Alford to his seat in the Eighty-sixth Congress;
Therefore be it
Resolved, That Dale Alford was duly elected a Representative to
the Eighty-sixth Congress from the Fifth Congressional District of
Arkansas, and is entitled to a seat therein.
Parliamentarian's Note: The Select Committee to Investigate
Campaign Expenditures, of the 85th Congress, had recommended, after
investigating the elections in the fall of 1958, that Member-elect
Alford not be seated pending an investigation of election
irregularities. He was administered
[[Page 934]]
the oath, but his final right to a seat was referred for investigation
to the Committee on House Administration, which investigated
allegations of fraud and dishonesty in the conduction of the
congressional election for the Fifth Congressional District of
Arkansas.(11)
---------------------------------------------------------------------------
11. See the remarks of Mr. Thomas P. O'Neill, Jr. (Mass.) on the
Alford-Hays election at 105 Cong. Rec. 3432-34, 86th Cong. 1st
Sess., Mar. 5, 1959.
---------------------------------------------------------------------------
Investigations of Campaign Contributions
Sec. 13.6 In the 91st Congress, the House rules were amended to confer
upon the Committee on Standards of Official Conduct jurisdiction
over the raising, reporting, and use of campaign contributions for
House candidates, and jurisdiction over investigation of such
matters.
On July 8, 1970,(12) William M. Colmer, of Mississippi,
Chairman of the Committee on Rules called up House Resolution 1031,
amending the rules of the House in relation to the jurisdiction of the
Committee on Standards of Official Conduct over campaign contributions.
The House passed the resolution, to confer upon that committee
jurisdiction over the raising, reporting, and use of campaign
contributions for candidates for the House. The committee was also
given jurisdiction to investigate such matters and to report findings
to the House.
---------------------------------------------------------------------------
12. 116 Cong. Rec. 23138-41, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: In the 94th Congress, legislative
jurisdiction over campaign contributions was given to the Committee on
House Administration (H. Res. 5, Jan. 14, 1975).
Senate Investigation Into Election of House Member
Sec. 13.7 A Senate resolution providing for an investigation into
charges of election corruption involving a Member of the House was
placed on the Senate Calendar and referred, on motion, to the
Committee on Rules and Administration.
On Mar. 8, 1960,(13) the Clerk of the Senate read Senate
Resolution 285, offered by Senator John J. Williams, of Delaware. The
resolution provided in part:
---------------------------------------------------------------------------
13. 106 Cong. Rec. 4899, 4900, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Resolved, That the Committee on Rules and Administration, or
any duly authorized subcommittee thereof, is
[[Page 935]]
authorized and directed under sections 134(a) and 136 of the
Legislative Reorganization Act of 1946, as amended, and in
accordance with its jurisdictions specified by rule XXV of the
Standing Rules of the Senate, to examine, investigate, and make a
complete study of the charges, with a view to determining the truth
or falsity thereof, which have recently appeared in the public
press that certain persons have sought, through corruptly offering
various favors, privileges, and other inducements (including large
sums of money), to induce certain individuals to lend their
political support to one political party rather than to another, or
to become candidates of one political party rather than of another,
and that the offers made by such persons have in fact corruptly
induced certain of such individuals to change their political
affiliations or to lend their political support to one political
party rather than to another. . . .
Remarks were made concerning the unusual course being pursued by
the Senate in inquiring into the activities of a Member of the House:
Mr. [Everett M.] Dirksen [of Illinois]: Mr. President,
normally, of course, one branch of Congress does not take account
of the activities and behavior of a Member of the other branch on
the theory that each House, of course, is the judge of the
qualifications, behavior and conduct of its own Members. But I
think it must be said, in fairness to the resolution proposed by
the Senator from Delaware, that it is a fact that these reports
which are given wide currency and so freely ventilated in the press
in all sections of the country become something of a reflection on
the entire Congress as an institution.
Neither body in that sense escapes culpability in the eyes of
the public when these charges are not refuted and when they are not
rebutted. I believe that somehow, by some action, we should get to
the very bottom of this subject. . . .
But certainly these reflections should not be permitted to
continue without some action, without some answer, somewhere in the
whole legislative establishment. Accordingly, recognizing the
reluctance of one body to look into the affairs of its own Members,
perhaps this is the only remedy which we have in order to sift the
truth of these charges.
The resolution was directed towards an investigation of charges
made by a columnist concerning alleged bribery and a candidate for
public office, Mr. Adam C. Powell, of New York, a Member of the House
of Representatives. Debate ensued on the resolution. Mr. Williams
stated that he had called up the resolution for immediate consideration
because he wished the entire Senate to vote upon it and not to have it
referred to committee. Objection was made to its immediate
consideration, and the resolution went over until the next day.
The resolution was again debated on Mar. 11, 1960,(14)
and on
[[Page 936]]
May 4, 1960, when it was on motion referred to the Senate Committee on
Rules and Administration.(15)
---------------------------------------------------------------------------
14. 106 Cong. Rec. 5261-63, 86th Cong. 2d Sess.
15. 106 Cong. Rec. 9403-07, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
CHAPTER 8
Elections and Election Campaigns
C. CAMPAIGN PRACTICES
Sec. 14. Investigations by Select Committees
In recent Congresses (until the 93d Congress), a select committee
to investigate campaign expenditures had been created by one Congress
to study and review certain pending matters and to forward its findings
to the next Congress for appropriate action and use.(16)
Such findings have been used by the Committee on House Administration
in judging and investigating election contests and the validity of
certain elections.(17) In the 93d Congress, the House
granted the Committee on House Administration subpena power to conduct
investigations into election contests and practices, thereby enabling
the committee to assume the functions and duties of the select
committee,(18) and effective Jan. 3, 1975, the Committee on
House Administration as well as all other standing committees was given
subpena power, under Rule XI, clause 2(m), whether or not the House is
in session.
---------------------------------------------------------------------------
16. See Sec. Sec. 14.1-14.3, infra, for creation and funding of such
select committees.
Select committees, their creation, powers and procedures,
see Ch. 17, infra.
Investigations and inquiries generally, see Ch. 15, infra.
17. See Sec. Sec. 14.4 et seq., infra. For a discussion of the
jurisdictional overlap between the select committee and the
Committee on House Administration, see Sec. 14.6, infra.
18. See H. Res. 737, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The former Select Committee on Standards of Official Conduct
hadauthority to investigate improper conduct by Members, including
campaign activities.(19)
---------------------------------------------------------------------------
19. See Sec. 14.9, infra.
The Senate Select Committee on Standards of Official
Conduct recommended the censure of a Senator, who was then
censured by the Senate, for improper use and conversion of
campaign funds, in the 90th Congress (see Sec. 12.3, supra).
---------------------------------------------------------------------------
The Senate has established select committees to investigate
improper campaign activities.(20)
---------------------------------------------------------------------------
20. 20. See Sec. Sec. 14.10-14.12,
infra. -------------------
---------------------------------------------------------------------------
Creation of Select Committee to Investigate Campaign Expenditures
Sec. 14.1 In the 91st Congress, the House agreed to a privileged
resolution, reported by the Committee on Rules, estab
[[Page 937]]
lishing a select committee to investigate and report on campaign
expenditures and practices by candidates for the House.
On Aug. 4, 1970,(1) Mr. Thomas P. O'Neill, Jr., of
Massachusetts, called up and the House adopted the following
resolution, reported as privileged by the Committee on Rules:
---------------------------------------------------------------------------
1. 116 Cong. Rec. 27125, 27126, 91st Cong. 2d Sess. As indicated by
the note to Sec. 10.10, supra, the creation of such a select
committee is no longer necessary.
For similar select committees created by resolution, see H.
Res. 929, 89th Cong. 2d Sess., Aug. 11, 1966, and H. Res. 1239,
90th Cong. 2d Sess., Aug. 1, 1968.
See also H. Res. 131, 93d Cong. 1st Sess., Jan. 15, 1973,
continuing and funding a special committee on campaign
expenditures. The resolution extended the special committee
created in the 92d Congress, in order to enable it to assist
the Clerk in investigating new allegations of violations of
federal election laws.
H. Res. 279, 93d Cong. 1st Sess., authorized joint
investigations by the select committee and the Clerk, so that
the subpena power of the committee could be used by the Clerk
in carrying out his functions under the Federal Elections
Campaign Act of 1971.
---------------------------------------------------------------------------
H. Res. 1062
Resolved, That a special committee of five Members be appointed
by the Speaker of the House of Representatives to investigate and
report to the House not later than January 11, 1971, with respect
to the following matters:
(1) The extent and nature of expenditures made by all
candidates for the House of Representatives in connection with
their campaign for nomination and election to such office.
(2) The amount subscribed, contributed, or expended, and the
value of services rendered, and facilities made available
(including personal services, use of advertising space, radio and
television time, office space, moving picture films, and automobile
and any other transportation facilities) by any individual,
individuals, or group of individuals, committee, partnership,
corporation, or labor union, to or on behalf of each such candidate
in connection with any such campaign or for the purpose of
influencing the votes cast or to be cast at any convention or
election held in 1970 to which a candidate for the House of
Representatives is to be nominated or elected.
(3) The use of any other means or influence (including the
promise or use of patronage) for the purpose of aiding or
influencing the nomination or election of any such candidates.
(4) The amounts, if any, raised, contributed, and expended by
any individual, individuals, or group of individuals, committee,
partnership, corporation, or labor union, including any political
committee thereof, in connection with any such election, and the
amounts received by any political committee from any corporation,
labor union, individual, individuals, or group of individuals,
committee, or partnership.
[[Page 938]]
(5) The violations, if any, of the following statutes of the
United States:
(a) The Federal Corrupt Practices Act.
(b) The Act of August 2, 1939, as amended, relating to
pernicious political activities, commonly referred to as the Hatch
Act.
(c) The provisions of section 304, chapter 120, Public Law 101,
Eightieth Congress, first session, referred to as the Labor-
Management Relations Act, 1947.
(d) Any statute or legislative Act of the United States or of
the State within which a candidate is seeking nomination or
reelection to the House of Representatives, the violation of which
Federal or State statute, or statutes, would affect the
qualification of a Member of the House of Representatives within
the meaning of article I, section 5, of the Constitution of the
United States.
(6) Such other matters relating to the election of Members of
the House of Representatives in 1970, and the campaigns of
candidates in connection therewith, as the committee deems to be of
public interest, and which, in its opinion, will aid the House of
Representatives in enacting remedial legislation, or in deciding
contests that may be instituted involving the right to a seat in
the House of Representatives.
(7) The committee is authorized to act upon its own motion and
upon such information as in its judgment may be reasonable or
reliable. Upon complaint being made to the committee under oath, by
any person, candidate or political committee, setting forth
allegations as to facts which, under this resolution, it would be
the duty of said committee to investigate, the committee shall
investigate such charges as fully as though it were acting upon its
own motion, unless, after a hearing upon such complaint, the
committee shall find that the allegations in such complaint are
immaterial or untrue. All hearings before the committee, and before
any duly authorized subcommittee thereof, shall be public, and all
orders and decisions of the committee, and of any such
subcommittee, shall be public.
For the purpose of this resolution, the committee or any duly
authorized subcommittee thereof, is authorized to hold such public
hearings, to sit and act at such times and places during the
sessions, recesses, and adjourned periods of the Ninety-first
Congress, to employ such attorneys, experts, clerical, and other
assistants, to require by subpena or otherwise the attendance of
such witnesses and the production of such correspondence, books,
papers, and documents, to administer such oaths, and to take such
testimony as it deems advisable. Subpenas may be issued under the
signature of the chairman of the committee or any subcommittee, or
by any member designated by such chairman, and may be served by any
person designated by any such chairman or member.
(8) The committee is authorized and directed to report promptly
any and all violations of any Federal or State statutes in
connection with the matters and things mentioned herein to the
Attorney General of the United States in order that he may take
such official action as may be proper.
(9) Every person who, having been summoned as a witness by
authority of said committee or any subcommittee
[[Page 939]]
thereof, willfully makes default, or who, having appeared, refuses
to answer any question pertinent to the investigation heretofore
authorized, shall be held to the penalties prescribed by law.
That said committee is authorized and directed to file interim
reports whenever in the judgment of the majority of the committee,
or of the subcommittee conducting portions of said investigation,
the public interest will be best served by the filing of said
interim reports, and in no event shall the final report of said
committee be filed later than January 11, 1971, as hereinabove
provided.
Sec. 14.2 A resolution creating a special committee to investigate and
report on campaign expenditures of all Members is called up as
privileged.
On Aug. 10, 1966, there was reported by the Committee on Rules
House Resolution 929, authorizing the Speaker to appoint a special
committee to investigate and report on campaign expenditures of
candidates for the House of Representatives. The resolution was called
up as privileged on Aug. 11 and agreed to by the House.(2)
---------------------------------------------------------------------------
2. 112 Cong. Rec. 18775, 19080, 19081, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Similarly, on Aug. 1, 1968,(3) the Committee on Rules
offered House Resolution 1239 authorizing the Speaker to appoint a
special committee to investigate and report on campaign expenditures of
candidates for the House. The resolution was called up as privileged
and was agreed to. On Aug. 2, 1968, Speaker John W. McCormack, of
Massachusetts, appointed members to the special committee pursuant to
the resolution.(4)
---------------------------------------------------------------------------
3. 114 Cong. Rec. 24770, 24771, 90th Cong. 2d Sess.
4. 114 Cong. Rec. 25064, 90th Cong. 2d Sess.
The Committee on Rules reports as privileged a report on a
resolution creating a select committee. See, for example, 108
Cong. Rec. 16000, 87th Cong. 2d Sess., Aug. 9, 1962. Generally,
see Ch. 17. infra.
---------------------------------------------------------------------------
Sec. 14.3 Funds for a special committee to investigate campaign
expenditures are authorized by House resolution and paid from the
contingent fund.
On Aug. 2, 1968,(5) the House passed a resolution
authorizing the payment of expenses for an investigation to be
conducted by the special committee to investigate campaign
expenditures, established by House Resolution 1239. The resolution
provided for payment from the contingent fund for staff members and for
other expenditures of the committee.
---------------------------------------------------------------------------
5. 114 Cong. Rec. 25065, 90th Cong. 2d Sess.
---------------------------------------------------------------------------
Since the resolution was not reported from the Committee on
[[Page 940]]
House Administration, the resolution was not called up as privileged:
Mr. [Samuel N.] Friedel [of Maryland]: Mr. Speaker, I ask
unanimous consent for the immediate consideration of House
Resolution 1281.
The Clerk read the resolution, as follows:
H. Res. 1281
Resolved, That the expenses of conducting the investigation
authorized by H. Res. 1239, Ninetieth Congress, incurred by the
Special Committee To Investigate Campaign Expenditures, 1968,
acting as a whole or by subcommittee, not to exceed $50,000,
including expenditures for employment of experts, special
counsel, and clerical, stenographic, and other assistants,
shall be paid out of the contingent fund of the House on
vouchers authorized by said committee, signed by the chairman
of the committee, and approved by the Committee on House
Administration.
Sec. 2. The official stenographers to committees may be
used at all hearings held in the District of Columbia if not
otherwise engaged.
The Speaker: (6) Is there objection to the request
of the gentleman from Maryland?
---------------------------------------------------------------------------
6. John W. McCormack (Mass.).
---------------------------------------------------------------------------
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Use of Select Committee Findings to Judge Elections
Sec. 14.4 The findings of a special committee to investigate campaign
expenditures, established by the House in the preceding Congress,
may be transmitted to the Committee on House Administration and
used where applicable by parties to election
contests.(7)
---------------------------------------------------------------------------
7. See H. Rept. No. 1599 and H. Res. 580 in the contested election
case of Macy v Greenwood, First Congressional District of New
York, reported Mar. 19, 1952. 98 Cong. Rec. 2545, 82d Cong. 2d
Sess.
For a resolution adopted in the 93d Congress granting the
Committee on House Administration subpena power in conducting
investigations, thereby enabling it to assume the functions of
the select committee, see H. Res. 737, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 14.5 A special committee to study campaign expenditures of the
Members in the preceding Congress has recommended that the
Committee on House Administration investigate and report to the
House by a certain date.(8)
---------------------------------------------------------------------------
8. See H. Rept. No. 2482 and H. Res. 676 in the election contest of
Oliver v Hale, for the First Congressional District of Maine,
reported Aug. 6, 1958, 104 Cong. Rec. 16481, 85th Cong. 2d
Sess.
---------------------------------------------------------------------------
Sec. 14.6 Where the Select Committee to Investigate Campaign
Expenditures of the
[[Page 941]]
89th Congress investigated the election of a Member-elect and
recommended that his right to his seat be reserved for decision, he
was sworn in, but his final right to a seat was referred to the
Committee on House Administration.
On Jan. 10, 1967,(9) the House passed a resolution
authorizing the administration of the oath to Member-elect Benjamin B.
Blackburn, of Georgia, but directing that his final right to a seat be
referred to the Committee on House Administration. The determination of
his right to a seat was reserved for later decision pursuant to the
recommendation of the Select Committee to Investigate Campaign
Expenditures appointed in the 89th Congress.(10)
---------------------------------------------------------------------------
9. 113 Cong. Rec. 27, 90th Cong. 1st Sess.
10. See H. Rept. No. 2348, 89th Cong. 2d Sess., Jan. 3, 1967.
---------------------------------------------------------------------------
The right of Mr. Blackburn to his seat was then treated as a
contested election case, and the Committee on House Administration
recommended that Mr. Blackburn be declared entitled to his seat after
the investigation.(11)
---------------------------------------------------------------------------
11. 113 Cong. Rec. 15848, 15849, 90th Cong. 1st Sess., June 14, 1967.
---------------------------------------------------------------------------
On July 11, 1967,(12) the House adopted House Resolution
542, reported by the committee, affirming the right of Mr. Blackburn to
his seat. The resolution was offered by Mr. Robert T. Ashmore, of South
Carolina. He discussed the basis for the investigation, including the
dispute concerning the accuracy of computers used to count the ballots.
---------------------------------------------------------------------------
12. 113 Cong. Rec. 18291, 18292, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Charles E. Goodell, of New York, remarked in debate on the
function of the Select Committee on Campaign Expenditures and the
conflict in jurisdiction between that committee and the Subcommittee on
Elections of the Committee on House Administration.
Mr. Goodell: Mr. Speaker, I also join in the committee decision
in this instance to dismiss the contest brought by Mr. Mackay
against the incumbent contestee, the gentleman from Georgia [Mr.
Blackburn]. It should be emphasized that at this stage Mr. Mackay
has requested the withdrawal of his contest, so there is really no
issue left to argue about.
I think there is one point, however, that should be made in
this debate which affects all of us in the possibility of election
contests in our own districts in the future. We must move to
clarify the whole procedure of election contests in the interim
between the election date and the opening of a new Congress. In
that period the jurisdiction lies to a degree in the Special
Committee on Campaign Expenditures. As a practical matter, the
ultimate decision for investigating and deter
[[Page 942]]
mining election contests rests with the new Congress and with the
Subcommittee on Elections of the Committee on House Administration.
We have had in the past confusion in election contest cases. The
contester in some instances has felt he had complied with the law
by giving notice of contest to the Special Committee on Campaign
Expenditures and failed to give notice under the law to the Clerk
of the House and the Subcommittee on Elections of the Committee on
House Administration.
In addition, Mr. Speaker, it seems unnecessary that we have two
such subcommittees operating with overlapping jurisdiction.
We have moved to a degree to provide that the membership of the
Special Committee on Campaign Expenditures will be the same as the
membership of the House Subcommittee on Elections.
Perhaps this would be a solution. In any event I believe this
Congress should move to try to eliminate the overlapping and
confusion that exists in the present law between the jurisdictions
of these two committees. It caused some difficulty in this
instance. The Special Committee on Campaign Expenditures spent
considerable time debating its proper jurisdiction, and the special
committee ultimately, by a divided vote, recommended that the
gentleman from Georgia [Mr. Blackburn] not be seated on opening
day. There was considerable difference of opinion as to the proper
jurisdiction of the Elections Subcommittee as distinguished from
the Campaign Expenditures Special Committee in this situation.
Mr. Speaker, I would hope that we could move to eliminate any
possibility of this type of confusion in the future.
Sec. 14.7 Both candidates for a congressional seat filed petitions with
the special campaign expenditures committee of the preceding
Congress, which committee investigated only one petition filed
therewith.
On June 13, 1961,(13) the Committee on House
Administration reported on the Roush-Chambers election contest for the
Fifth Congressional District of Indiana. As indicated by the report (H.
Rept. No. 513) and by the debate in the House on House Resolution 339,
on June 14, 1961, declaring Mr. J. Edward Roush entitled to the seat,
both candidates had filed petitions with the special campaign
expenditures committee created in the 86th Congress. The dispute was
resolved in favor of Mr. Roush, although the committee had prepared
findings on and had investigated only one of the petitions filed
therewith.(14)
---------------------------------------------------------------------------
13. 107 Cong. Rec. 10186, 87th Cong. 1st Sess.
14. For debate on the resolution, see 107 Cong. Rec. 10377-91, 87th
Cong. 1st Sess. For minority views criticizing the action of
the special committee and the action of the Committee on House
Administration, see id. at p. 10381.
---------------------------------------------------------------------------
Sec. 14.8 The Committee on House Administration took
[[Page 943]]
``judicial notice'' of complaints filed with a special committee to
investigate campaign expenditures of the preceding Congress,
although the special committee had failed to make recommendations
thereon.
On Apr. 22, 1958,(15) the Committee on House
Administration reported on the contested election case of Carter v
LeCompte for the Fourth Congressional District of Iowa, and recommended
that the contestee be declared entitled to his seat. In its report,
House Report No. 1626, the committee took judicial notice of complaints
filed by the contestant with the special committee to investigate
campaign expenditures which had been created and appointed in the 84th
Congress. The special committee had not taken any action on those
complaints.
---------------------------------------------------------------------------
15. 104 Cong. Rec. 6939, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
On June 17, 1958, the House debated and adopted House Resolution
533 declaring the contestee entitled to the seat.(16)
---------------------------------------------------------------------------
16. 104 Cong. Rec. 11512-17, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
Former Select Committee on Standards and Conduct
Sec. 14.9 In the 89th Congress, the House established a Select
Committee on Standards and Conduct, with authority to investigate
allegations of improper conduct by Members.
On Oct. 19, 1966,(17) a resolution establishing a Select
Committee on Standards and Conduct, offered by the Committee on Rules,
was called up as privileged (H. Res. 1013). The function of the
proposed committee was to investigate allegations of improper conduct
by Members, to recommend disciplinary action to the House, and to
transmit recommendations as to any necessary legislation. The House
passed the resolution, as amended, on the same day.(18)
---------------------------------------------------------------------------
17. 112 Cong. Rec. 27713-29, 89th Cong. 2d Sess.
18. Expenditures by the Select Committee on Standards and Conduct were
authorized to be paid out of the contingent fund of the House.
112 Cong. Rec. 27730, 89th Cong. 2d Sess., Oct. 19, 1966. The
Speaker [John W. McCormack (Mass.)] announced his appointments
to the select committee on Oct. 20, 1966, 112 Cong. Rec. 28112,
89th Cong. 2d Sess.
A standing Committee on Standards of Official Conduct, with
jurisdiction over campaign contributions, was established in
the 90th Congress (see Ch. 17, infra).
---------------------------------------------------------------------------
Senate Select Committee on Campaign Practices
Sec. 14.10 A special Senate committee established in the 71st
[[Page 944]]
Congress to investigate campaign practices and violations of the
Corrupt Practices Act held extensive hearings and proposed
legislation intended to remedy certain defects in the act.
On Apr. 10, 1930, the Senate passed Senate Resolution 215,
establishing a special committee to investigate the elections of 1930,
with respect to campaign expenditures, election primaries, election
contests, campaign practices, and alleged violations of the Federal
Corrupt Practices Act of 1925.
The committee conducted extensive hearings and submitted reports on
the effectiveness of the act (19) and on alleged violations
thereof.(20)
---------------------------------------------------------------------------
19. S. Rept. No. 20, 72d Cong. 1st Sess., submitted pursuant to S. Res.
215, printed in 75 Cong. Rec. 977-79, 72d Cong. 1st Sess., Dec.
21, 1931.
20. S. Rept. No. 24, pursuant to S. Res. 403, 72d Cong. 1st Sess., Dec.
21, 1931.
---------------------------------------------------------------------------
Sec. 14.11 The Vice President was authorized to appoint a special
committee for an investigation of alleged attempts to improperly
influence the Senate through campaign contributions.
On Feb. 22, 1956,(1) the Senate adopted Senate
Resolution 219, authorizing an investigation by a special committee of
lobbying activities. (The Senate had previously authorized an
investigation into an alleged effort to influence a Senator, by
contributing to his campaign, in relation to the natural gas bill, S.
1853.) In his veto message on the gas bill, President Eisenhower stated
that accumulated evidence of questionable activities in relation to the
bill indicated a substantial threat to the integrity of the
governmental process.
---------------------------------------------------------------------------
1. 102 Cong. Rec. 3116, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Senate Resolution 219, as agreed to, provided in part:
Resolved, That there is hereby established a special committee
which is authorized and directed to investigate the subject of
attempts to influence improperly or illegally the Senate or any
Member thereof, or any candidate therefor, or any officer or
employee of the executive branch of the Government, through
campaign contributions, political activities, lobbying, or any and
all other activities or practices. . . .
. . . The special committee shall consist of 8 members to be
appointed by the Vice President. . . .
. . . The special committee shall report to the Senate by
January 31, 1957, and shall include in its report specific
recommendations (1) to improve and modernize the Federal election
laws; (2) to improve and strengthen the Federal Corrupt Practices
Act, the Hatch Act, and the Federal Regulation of Lobbying Act, and
related laws; and (3) to insure appropriate ad
[[Page 945]]
ministrative action in connection with all persons, organizations,
associations, or corporations believed to be guilty of wrongdoing
punishable by law.
Sec. 14.12 In the 84th Congress, the Senate by resolution created a
select committee to investigate an attempt by a campaign
contributor to influence the vote of a Senator.
On Feb. 7, 1956,(2) there was laid before the Senate a
resolution (S. Res. 205) establishing a select committee to investigate
allegedly improper attempts through political contributions to
influence the vote of a Senator. The Senate adopted the resolution:
---------------------------------------------------------------------------
2. 102 Cong. Rec. 2167, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Resolved, That there is hereby established a select committee
to investigate the circumstances involving an alleged improper
attempt through political contributions to influence the vote of
the junior Senator from South Dakota [Mr. Case] in connection with
the Senate's consideration of the bill S. 1853, the natural gas
bill.
Parliamentarian's Note: During the consideration of S. 1853, the
gas bill, Senator Francis H. Case announced that an attempt had been
made to influence his vote on the measure by tendering him a campaign
contribution.
CHAPTER 8
Elections and Election Campaigns
D. CERTIFICATES OF ELECTION
Sec. 15. In General; Form
After congressional elections have been conducted and results
tabulated, the official returns are transmitted to the state executive,
or other official designated to receive them under state law, for the
issuance of a certificate of election.(3) These
certificates, also termed ``credentials,'' are sent to the Clerk of the
House for initial use in composing the Clerk's roll before the
convening of Congress.
[[Page 946]]
Once Congress meets, the certificate constitutes evidence of a prima
facie right to a congressional seat in the House.(4)
---------------------------------------------------------------------------
3. The subject of this division is the issuance and form of election
certificates, substantive grounds for challenge to their
validity, and the practice of the House in determining whether
a Member-elect may be sworn on the strength of his certificate.
On occasion, challenges to the validity of an election or
to the satisfaction of qualifications (see Sec. Sec. 16.6,
16.7, infra) or to other matters are stated as challenges to
the credentials. Such challenges are treated elsewhere; see Ch.
2, supra (enrolling Members and administering the oath), Ch. 7,
supra (qualifications of Members), and Ch. 9, infra (election
contests).
4. The term ``certificate of election'' has been preferred herein to
``credentials'' since reference is to a specific document and
not to qualifications in general.
For the procedure of presenting credentials, the status of
Members-elect, and the functions of House officers at or before
the convening of Congress, see Ch. 2, supra.
---------------------------------------------------------------------------
The certificate is neither binding on the House nor essential to
the administration of the oath, since the House is the sole and final
judge of the elections and returns of its Members.(5) Any
Member or Member-elect has the right to object to the administration of
the oath to another by delivering a challenge either to the validity of
the election or to the validity of the certificate
itself.(6)
---------------------------------------------------------------------------
5. U.S. Const. art. I, Sec. 5, clause 1. Many Members-elect have been
sworn in absent a certificate of election (see Sec. 15.5,
infra).
6. For the form of challenges, and the procedure by which they are
made, see Ch. 2, supra.
---------------------------------------------------------------------------
The certificate must show that the Representative-elect was
regularly elected in accordance with the laws of his state or the laws
of the United States.(7) Most state laws provide for the
Governor to issue the certificate under the seal of the state, although
some provide for the secretary of state to perform the
function,(8) and some require the concurrent action of
another body, such as an executive council.(9) A citizens'
group or party committee has no authority to issue a certificate based
on an election conducted by them, even if the regular election was
conducted in violation of state or federal law.(10)
---------------------------------------------------------------------------
7. 2 USC Sec. 26. See also 2 USC Sec. 34 (referring to ``credentials
in due form of law'').
8. See Sec. Sec. 15.2, 15.7, infra
9. See Sec. 17.5, infra.
10. See Sec. 15.1, infra.
---------------------------------------------------------------------------
The state Governor, or other official charged with the function,
has an affirmative duty to issue and deliver the credentials and cannot
reject the official results.(11) Where no regular election
is held, there being only one qualified candidate, the Governor may
proclaim him duly elected and thereafter issue a certificate of
election.(12)
---------------------------------------------------------------------------
11. See Sec. 15.3, infra. See also 1 Hinds' Precedents Sec. 553
(administration of oath ordered by House, where Governor
declined to issue credentials for a Member-elect whose election
was unquestioned).
12. See Sec. 15.4, infra.
---------------------------------------------------------------------------
A Member may be enrolled and even sworn by action of the House even
though a state court has enjoined the issuance of a certificate
[[Page 947]]
by the state executive.(13) Indeed, it is doubtful whether
state courts have jurisdiction to enjoin the issuance of a certificate,
most courts holding they do not since Congress is the sole judge of
elections and returns.(14)
---------------------------------------------------------------------------
13. See Sec. Sec. 16.3, 16.4, infra.
14. See Sec. 15.2, infra.
---------------------------------------------------------------------------
The certificate is sent, usually by certified mail, directly to the
Clerk of the House, who retains it for a period of four
years.(15) The certificate is not in contemporary practice
carried to the House by the Member-elect. At the convening of Congress,
the Clerk states that credentials have been received showing that the
persons named therein were elected in accordance with state and federal
law.(16)
---------------------------------------------------------------------------
15. The certificates are retained for four years because those of the
Resident Commissioner are effective for that period (see
Sec. 15.6, infra). Subsequently they are delivered to the
National Archives.
16. See, i.e., 117 Cong. Rec. 9, 92d Cong. 1st Sess., Jan. 21, 1971.
For the Clerk's preliminary review of the certificate, see
Ch. 2, supra. The Clerk has declined to enroll some Members-
elect because their certificates were irregular.
---------------------------------------------------------------------------
Although the form of the certificate is not specified by law, it
normally contains the following elements: signatures of both the
Governor and the secretary of state; stamp of the great seal of the
state; specification of the term to which the Member-elect was chosen;
and attestation to the validity of the election.(17)
---------------------------------------------------------------------------
17. A further element of some credentials may be the attestation to the
death of a Member, where the credentials are for a Member-elect
to fill an unexpired term in such a case (see 1 Hinds'
Precedents Sec. 568).
When the fact of a Member's death does not appear from his
successor's credentials, the House has inquired into the status
of the seat (see 2 Hinds' Precedents Sec. Sec. 1208,
1209). -------------------
---------------------------------------------------------------------------
Issuance of Certificate by State Executive
Sec. 15.1 A citizens' group has no authority to issue certificates of
election.(18)
---------------------------------------------------------------------------
18. Although by federal statute certificates of Senators-elect must be
issued by the Governor under the state seal and countersigned
by the secretary of state (2 USCA Sec. Sec. 1a and 1b), the
certificate of a Representative-elect must show only that he
was elected in accordance with state or federal law. 2 USCA
Sec. 26.
State statutes provide for the Governor, or in some cases,
the secretary of state, to issue the certificate for a
Representative-elect.
---------------------------------------------------------------------------
[[Page 948]]
In the 73d Congress (19) and in the 89th Congress
(20) the House determined that a citizens' group could
neither call an election of its own nor issue a certificate of election
to a person allegedly chosen as Representative-elect in such an
election.
---------------------------------------------------------------------------
19. 78 Cong. Rec. 1521, 73d Cong. 2d Sess., Jan. 29, 1934 (H. Res. 231
and H. Rept. No. 334, Committee on Elections).
20. 111 Cong. Rec. 24292, 89th Cong. 1st Sess., Sept. 17, 1965
(dismissal of election contest).
---------------------------------------------------------------------------
Sec. 15.2 A state executive official has issued a certificate of
election notwithstanding an injunction against such issuance by the
state judiciary.(1)
---------------------------------------------------------------------------
1. Since Congress is the judge of elections and returns, most courts
have refused to enjoin or prohibit the issuance of a
certificate. See Keogh v Horner, 8 F Supp 933 (D. Ill. 1934);
Odegard v Olson, 264 Minn. 439, 119 N.W. 2d 717 (1963);
Burchell v State Board of Election Commissioners, 252 Ky. 823,
68 S.W. 2d 427 (1934). Contra, People ex ref. Brown v Board of
Suprs. of Suffolk County, 216 N.Y. 732, 110 N.E. 776 (1915)
(see also Sec. 16.4, infra).
---------------------------------------------------------------------------
On Jan. 3, 1949, the Clerk advised the House that he had placed on
the roll the name of Member-elect John C. Davies, from New York,
although the Clerk had been advised that a state court had issued an
order restraining the secretary of state from issuing the
certificate.(2)
---------------------------------------------------------------------------
2. 95 Cong. Rec. 8, 81st Cong. 1st Sess. See also Sec. 16.4, infra,
wherein the House adopted a resolution authorizing the
administration of the oath to a Member-elect, a citizens' group
having obtained a state court injunction against the issuance
of a certificate by the state Governor.
---------------------------------------------------------------------------
Sec. 15.3 A state Governor, pursuant to the finding of a state court
issued a certificate to a contestee based on an official canvass of
votes.
On Aug. 12, 1958,(3) Mr. Robert Hale, of Maine, was
declared entitled to the seat for the First Congressional District in
his state, the Governor having issued a certificate of election to him
based on a state court finding and on an official canvass of
votes.(4)
---------------------------------------------------------------------------
3. 104 Cong. Rec. 17119, 85th Cong. 2d Sess.
4. See also H. Rept. No. 2482, 85th Cong. 2d Sess., Committee on House
Administration, to accompany H. Res. 676, relating to the
election contest of Oliver v Hale for the First Congressional
District of Maine.
---------------------------------------------------------------------------
Sec. 15.4 In one instance, a Member was sworn without a certificate of
election but pursuant to a proclamation by the state Governor that
he was duly elected to fill a vacancy.
[[Page 949]]
On Oct. 18, 1965,(5) the oath was administered to Mr.
Edwin W. Edwards, of Louisiana, to fill a vacancy in a congressional
seat from his state. His certificate of election had not been sent to
the Clerk, but a proclamation from the state Governor declaring Mr.
Edwards to be duly elected to fill a vacancy was transmitted to the
Clerk's office. No general election had been held since Mr. Edwards had
won the Democratic primary election and was the only qualified
candidate to stand for general election to fill the vacancy.
---------------------------------------------------------------------------
5. 111 Cong. Rec. 27171, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Effect of Delay in Arrival of Certificate
Sec. 15.5 The oath is administered by unanimous consent to Members-
elect whose certificates of elections have not arrived, there being
no contest or question as to the validity of their
elections.(6)
---------------------------------------------------------------------------
6. 115 Cong. Rec. 17622, 91st Cong. 1st Sess., June 27, 1969; 115
Cong. Rec. 11209, 91st Cong. 1st Sess., May 5, 1969; 115 Cong.
Rec. 8129, 91st Cong. 1st Sess., Apr. 1, 1969; 114 Cong. Rec.
4441, 90th Cong. 2d Sess., Feb. 28, 1968; 113 Cong. Rec. 36514,
90th Cong. 1st Sess., Dec. 14, 1967; 105 Cong. Rec. 9571, 86th
Cong. 1st Sess., June 2, 1959; 105 Cong. Rec. 3600, 86th Cong.
1st Sess., Mar. 9, 1959; 104 Cong. Rec. 10164, 85th Cong. 2d
Sess., June 4, 1958; 104 Cong. Rec. 1072, 85th Cong. 2d Sess.,
Jan. 27, 1958; 104 Cong. Rec. 669, 85th Cong. 2d Sess., Jan.
20, 1958; 102 Cong. Rec. 2383, 84th Cong. 2d Sess., Feb. 8,
1956; 97 Cong. Rec. 11481, 82d Cong. 1st Sess., Sept. 17, 1951;
97 Cong. Rec. 9316, 82d Cong. 1st Sess., Aug. 1, 1951; 92 Cong.
Rec. 1852, 79th Cong. 2d Sess., Mar. 4, 1946.
---------------------------------------------------------------------------
Certificates of Delegates and Resident Commissioner
Sec. 15.6 Certificates of election for Delegates to the House,
effective for two years, and for the Resident Commissioner,
effective for four years, are transmitted to the
House.(7)
---------------------------------------------------------------------------
7. In former practice, the Resident Commissioner was appointed rather
than elected, and his certificate of appointment was
transmitted to the House by the President of the United States.
80 Cong. Rec. 2053, 74th Cong. 2d Sess., Feb. 14, 1936. See
also 90 Cong. Rec. 7102, 78th Cong. 2d Sess., Aug. 18, 1944.
---------------------------------------------------------------------------
At the convening of the 93d Congress, the Clerk addressed the
House, after the call of the roll, to state that certificates of
election had been received for the Delegates from Guam, the Virgin
Islands, and the District of Columbia, and for the Resident
Commissioner of Puerto Rico, the latter for a term of four
years.(8)
---------------------------------------------------------------------------
8. 119 Cong. Rec. 11-15, 93d Cong. 1st Sess., Jan. 3, 1973.
---------------------------------------------------------------------------
[[Page 950]]
Sec. 15.7 Where a territorial act passed by Congress required the
Governor to declare the election result and to deliver the
certificate to the Delegate but allowed the territorial legislature
power over election laws, a territory law requiring the secretary
thereof to declare and certify election results was held
controlling in an election contest.
On May 21, 1936, a committee on elections submitted House
Resolution 521 and Report 2736 in the contested election case of
McCardless v King for the seat of Delegate from the territory of
Hawaii.(9)
---------------------------------------------------------------------------
9. 80 Cong. Rec. 7765, 74th Cong. 2d Sess. The House passed the
resolution, without debate, on June 2, 1936, 80 Cong. Rec.
8705, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The proposed resolution declared Mr. Samuel Wilder King to be duly
elected as Delegate. The report also construed the Hawaiian Organic
Act, passed by Congress, to determine whether contest had been filed
within the 30 days required by law. The act required the territorial
Governor to declare elected and to deliver a certificate of election to
the Delegate, but also provided that the election be conducted in
conformity with the general laws of the territory and permitted the
territory legislature to amend the election laws.
The committee held that a law of the Hawaiian territorial
legislature which required the secretary of the territory to declare
and certify election results was controlling as to the question as to
whether the contestant had filed notice of contest within the time
required by law.(10)
---------------------------------------------------------------------------
10. H. Rept. No. 2736, Committee on Elections No. 2, 74th Cong. 2d
Sess.
---------------------------------------------------------------------------
Senate Certificates
Sec. 15.8 At the convening of Congress, the Vice President announces
the receipt of certificates of election for Senators-elect,
indicates whether they are regular in form, and causes them to be
printed in the Record.
On Jan. 21, 1971, the convening date of the Senate in the 92d
Congress,(11) Vice President Spiro T. Agnew announced as
follows:
---------------------------------------------------------------------------
11. 117 Cong. Rec. 3, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
The Chair lays before the Senate the credentials of 33 Senators
elected for 6-year terms beginning January 3, 1971.
All certificates, the Chair is advised, are in the form
suggested by the Senate, except the ones from Pennsylvania
[[Page 951]]
and Massachusetts which use the word ``Commonwealth'' instead of
``State,'' and five others in various State forms.
If there be no objection, the reading of the 28 certificates in
the form recommended by the Senate will be waived and they will be
printed in full in the Record.
No objection was heard and the certificates were printed in full in
the Congressional Record.(12)
---------------------------------------------------------------------------
12. 117 Cong. Rec. 3-5, 92d Cong. 1st Sess. 2 USC Sec. Sec. 1a and 1b
require a certain form for Senate certificates.
---------------------------------------------------------------------------
Sec. 15.9 On one occasion, the Senate ordered the return to a state of
a certificate of appointment to fill a vacancy in that body on
receipt of a telegraphic request from the Governor, who advised the
Senate that the appointee had declined to serve.
On June 21, 1956,(13) acting President pro tempore
William R. Laird 3d, of West Virginia, laid before the Senate two
communications from the Governor of Kentucky, one certifying the
appointment of a Senator-elect to fill a vacancy, and one to request
the return of the certificate, since the appointee had declined to
serve. The Senate ordered the certificate returned to the Governor.
---------------------------------------------------------------------------
13. 102 Cong. Rec. 10769, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
CHAPTER 8
Elections and Election Campaigns
D. CERTIFICATES OF ELECTION
Sec. 16. Grounds for Challenge
Before Members-elect rise together to be administered the oath of
office at the convening of Congress, any Member-elect may object to the
right of a colleague to be sworn in. Similarly, the right to be sworn
of a Member-elect who is elected to fill a vacancy during a Congress
may be objected to.(14) Most challenges are made to the
validity of an election, or to the procedure followed therein, or to
the qualifications of the Member-elect. However, a challenge may be
directed specifically against the certificate of election itself by
reason of formal defects or of impeachment by other facts or
documents.(15)
---------------------------------------------------------------------------
14. For the procedure of challenging the right to be sworn, see Ch. 2,
supra.
15. Some challenges which are in fact objections to the election or
qualifications of a Member-elect are stated as objections to
his certificate (see Sec. Sec. 16.6, 16.7, infra).
---------------------------------------------------------------------------
Since certificates are prepared in accordance with a customary
format (16)~ and in accordance with state
law,(17) defects in form and improper terminology constitute
grounds for challenge to a certificate of election. However, if the
House is satisfied that a certifi
[[Page 952]]
cate clearly indicates when and where a Member-elect was chosen, and
for what term and district, he will be seated.(18)
---------------------------------------------------------------------------
16. See Sec. 16.1, infra.
17. See 2 USC Sec. 26.
18. See Sec. 16.1, infra.
---------------------------------------------------------------------------
A more substantial ground for challenge is the claim that the
certificate was issued in violation of state law. For example,
objection may be made to a certificate issued before the expiration of
an interim period mandated by state law, or issued in disregard of
official results.(19)
---------------------------------------------------------------------------
19. See Sec. 16.2, infra.
---------------------------------------------------------------------------
On occasion, citizens' groups or candidates have obtained state
court injunctions prohibiting the issuance of a certificate to a
certain candidate for reason of election irregularities. Some courts
have held, however, that they have no jurisdiction to entertain such
suits because they infringe upon the absolute congressional power to
judge elections and returns.(20)
---------------------------------------------------------------------------
20. See Sec. 16.3, infra. See, for an occasion where a ``citizens'
certificate'' was received, Sec. 16.5, infra.
The House has received certificates additional to those
allotted to a state, issued by the state executive, where the
state claimed representation additional to that apportioned to
it by Congress; such certificates have been rejected (see 1
Hinds' Precedents Sec. Sec. 314-319).
---------------------------------------------------------------------------
Certificates may also be challenged by evidence of other papers and
findings of fact. Official transcripts contradicting the certified
result of the vote may impeach a certificate. On one occasion, a
congressional investigatory committee of a Congress discovered election
irregularities of such magnitude as to impeach the certificate of a
Member-elect to the next Congress.(1)
---------------------------------------------------------------------------
1. See Sec. 16.2, infra.
Findings of fact by investigatory election committees in
one Congress are delivered to the next Congress for use in
election contests and challenges to seats (see Sec. 14,
supra). -------------------
---------------------------------------------------------------------------
Form
Sec. 16.1 In one instance, the certificate of a Member-elect was
objected to on the ground that the certificate stated he was ``duly
elected as Congressman,'' instead of ``Representative in
Congress.''
On June 2, 1930,(2) Mr. Robert H. Clancy, of Michigan,
arose to object to the validity of the certificate of election of
Thomas L. Blanton, Member-elect from Texas, to fill a vacancy. Mr.
Clancy's objection was based on the description in the credentials of
Mr. Blanton as ``Congressman,''
[[Page 953]]
instead of as ``Representative in Congress.''
---------------------------------------------------------------------------
2. 72 Cong. Rec. 9891, 9892, 71st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. John N. Garner, of Texas, arose to state that Mr. Clancy's
objection was frivolous, since the certificate clearly stated that Mr.
Blanton was elected from the 17th District of Texas, and to succeed Mr.
Robert Q. Lee, who all the Members of the House knew represented the
17th District in the House. Mr. Clancy responded that the Clerk of the
House had notified the authorities in Texas a number of times that they
should not designate the office as ``Congressman,'' but as
``Representative in Congress,'' and that the precedents of the House
mandated that the credentials must be in order and must correctly
describe the office.
The House then voted on the question and directed that the Speaker
administer the oath to the challenged Member-elect.(3)
---------------------------------------------------------------------------
3. Id. at p. 9892.
---------------------------------------------------------------------------
Impeachment by Other Evidence
Sec. 16.2 Where a candidate's certificate of election was contradicted
by other papers of state and county officials and by fact findings
of a special campaign expenditures committee, the House declared
that neither candidate was to be sworn and that the question be
referred to the Committee on House Administration for a
determination.
On Jan. 3, 1961,(4) the House adopted a resolution
referring to an elections committee the right of Mr. George O.
Chambers, of Indiana, who appeared with a certificate of election, and
Mr. J. Edward Roush, of Indiana, a contestant, to the congressional
seat from the Fifth Congressional District of that state.(5)
The House took such action after it appeared that the certificate of
election had been impeached by: certificates of error filed by county
officials on the counting and judging of ballots; a transcript from the
secretary of state of Indiana declaring the contestant duly elected and
not the Member-elect with the certificate of election; and findings of
fact by a special campaign expenditures committee, which had held
hearings on Dec. 16, 1960.(6)
---------------------------------------------------------------------------
4. 107 Cong. Rec. 23, 24, 87th Cong. 1st Sess.
5. See H. Rept. No. 513, 87th Cong. 1st Sess., Committee on House
Administration, relating to the contested election and the
validity of the certificate of election.
6. See the remarks of Mr. Ray R. Madden (Ind.) on Feb. 17, 1961, 107
Cong. Rec. 2295-97, 87th Cong. 1st Sess. Mr. Madden also stated
that the first certificate issued to Mr. Chambers was illegal
because it had been signed seven days after the election,
instead of 10 days, as mandated by state statute, and that the
second certificate issued to Mr. Chambers was illegal because
it ignored the certification transcript of the secretary of
state.
For additional debate on the action taken by the House in
the Roush-Chambers contest, on the validity and force of the
certificate of election, see 107 Cong. Rec. 10377-91, 87th
Cong. 1st Sess., June 14, 1961 (debate on H. Res. 339,
declaring Mr. Roush duly elected to the 87th Congress).
---------------------------------------------------------------------------
[[Page 954]]
Impeachment by Court Order
Sec. 16.3 The Clerk placed the name of a Member-elect on the roll where
a certificate of election in due form had been filed, although the
Clerk had been advised that a state court had issued a writ
restraining the secretary of state from issuing such
certificate.(7)
---------------------------------------------------------------------------
7. Since the Congress is the judge of elections and returns, most
courts have refused jurisdiction to prohibit the issuance of a
certificate. See Keogh v Horner, 8 F Supp 933 (D. Ill. 1934);
Odegard v Olson, 264 Minn. 439, 119 N.W. 2d 717 (1963);
Burchell v State Board of Election Commissioners, 252 Ky. 823,
68 S. W. 2d 427 (1934). Contra, People ex rel. Brown v Board of
Suprs. of Suffolk County, 216 N.Y. 732, 110 N.E. 776 (1915).
---------------------------------------------------------------------------
On Jan. 3, 1949,(8) at the convening of the 81st
Congress, the Clerk addressed the House as follows:
---------------------------------------------------------------------------
8. 95 Cong. Rec. 8, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
A certificate of election is on file in the Clerk's office,
showing the election of John C. Davies as a Representative-elect to
the Eighty-first Congress from the Thirty-fifth Congressional
District of the State of New York.
Several communications have been received from the executive
deputy secretary of state for the State of New York informing the
Clerk that a case is pending before the supreme court, Albany
County, N.Y., and that the said secretary of state is restrained
from certifying the election of a Representative from this
congressional district. However, in view of the fact that a
certificate of election in due form has been filed with the Clerk
by John C. Davies, the Clerk has therefore placed his name on the
roll.
Sec. 16.4 Where a state court issued a preliminary injunction against
the issuance of a certificate to a Member-elect to fill a vacancy
and the Speaker declined to administer him the oath, the House
authorized that he be sworn but that his final right to a seat be
referred to committee.
On May 24, 1972, the House authorized the Speaker to admin
[[Page 955]]
ister the oath to Member-elect William S. Conover II, to fill a vacancy
in a congressional seat from Pennsylvania. The authorizing resolution
provided that Mr. Conover's final right to a seat be referred to the
Committee on House Administration, since a citizens' group had obtained
a state court preliminary injunction prohibiting the state governor
from issuing a certificate of election to Mr. Conover.(9)
---------------------------------------------------------------------------
9. H. Res. 986, 118 Cong. Rec. 18654, 92d Cong. 2d Sess. The text of
the resolution explained that Mr. Conover was being sworn so as
not to deprive the State of Pennsylvania of representation in
the House pending ``protracted litigation'' for an ``indefinite
period.''
---------------------------------------------------------------------------
Parliamentarian's Note: Mr. Conover had originally appeared to take
the oath of office shortly after the special election to fill the
vacancy was held on Apr. 25, 1972, but the oath was not administered
since it was apparent that unanimous consent would not be granted due
to the issuance of the preliminary injunction in the state court.
Impeachment by ``Citizens' Certificate''
Sec. 16.5 Where two persons claimed the same seat in the House, one
with a certificate signed by the Governor of the state and the
other with a certificate from a citizens' elections committee, the
House refused to permit either to take the oath of office and
referred the question of their prima facie as well as final right
to the seat to a committee on elections.
On Jan. 3, 1934,(10) Speaker Henry T. Rainey, of
Illinois, laid before the House the following communication from the
Clerk:
---------------------------------------------------------------------------
10. 78 Cong. Rec. 11, 12, 73d Cong. 2d Sess.
---------------------------------------------------------------------------
I transmit herewith a certificate of election of Mrs. Bolivar
E. Kemp, Sr., to fill the vacancy caused by the death of Hon.
Bolivar E. Kemp, from the Sixth Congressional District of the State
of Louisiana, received by this office, signed by the Governor of
Louisiana, attested by the seal and by the secretary of state of
the State of Louisiana.
I also transmit herewith a communication from the Citizens'
Election Committee of the Sixth Congressional District of the State
of Louisiana in the form of a certificate of election of Hon. J.Y.
Sanders, Jr., to fill the vacancy caused by the death of Hon.
Bolivar E. Kemp, from the Sixth Congressional District of the State
of Louisiana.
The House then passed a resolution referring the prima facie as
well as the final right of Mrs. Kemp and of Mr. Sanders to a committee
on elections, and de
[[Page 956]]
cided that neither contestant should be sworn until the committee had
made its report.(11)
---------------------------------------------------------------------------
11. Id. at p. 12.
---------------------------------------------------------------------------
On Jan. 29, 1934, the House passed a resolution declaring the
election null and void as to both contestants, since the Governor's
certificate was issued pursuant to an invalid election, and the
citizens' group certificate was invalid per se.(12)
---------------------------------------------------------------------------
12. 78 Cong. Rec. 1521, 73d Cong. 2d Sess. (see H. Res. 231 and H.
Rept. No. 334 of the Committee on Elections, submitted Jan. 20,
1934, 78 Cong. Rec. 1035).
See also 111 Cong. Rec. 18-20 (Jan. 4, 1965), 18691 (July
29, 1965), 22364 (Aug. 21, 1965), 24263-92 (Sept. 17, 1965),
89th Cong. 1st Sess., for an instance where a citizens' group
issued a certificate of election on the basis that the regular
election was void because of denial of voting rights. The
Members-elect with the Governor's certificates were held
entitled to their seats.
---------------------------------------------------------------------------
Impeachment by Collateral Matters
Sec. 16.6 In the 88th Congress, a challenge to the qualifications of an
appointee to the Senate was stated as a challenge to the validity
of his certificate of appointment.
On Aug. 5, 1964, Senator Everett McKinley Dirksen, of Illinois,
challenged the validity of the certificate of appointment of Senator-
elect Pierre Salinger, on the ground that Mr. Salinger did not meet the
requirement of the California statute that an appointee to the Senate
must be a resident for one year before the day of
election.(13) Mr. Salinger was permitted to take the oath by
the Senate but his credentials were referred to the Committee on Rules
and Administration with instructions to report back to the Senate by a
specified date.(14)
---------------------------------------------------------------------------
13. 110 Cong. Rec. 18107, 88th Cong. 2d Sess.
14. Id. at p. 18120.
---------------------------------------------------------------------------
The Senate later affirmed by resolution Mr. Salinger's entitlement
to a seat in the Senate.(15)
---------------------------------------------------------------------------
15. 110 Cong. Rec. 19396, 19422, 88th Cong. 2d Sess., Aug. 13, 1964.
---------------------------------------------------------------------------
Sec. 16.7 In one instance, an objection based on the failure of a
candidate to receive a plurality of votes was stated as a challenge
to the validity of the certificate of election.
On Jan. 5, 1937,(16) Mr. John J. O'Connor, of New York,
arose to state an objection to the administration of the oath to Arthur
B. Jenks, Member-elect from New Hampshire. Mr. O'Connor stated
[[Page 957]]
that ``despite the fact that a certificate of his election has been
filed with the Speaker, it may be impeached by certain facts which tend
to show that he has not received a plurality of the votes duly cast in
that congressional district.''
---------------------------------------------------------------------------
16. 81 Cong. Rec. 12, 13, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Bertrand H. Snell, of New York, arose and stated:
The Rules and precedents of the House provide that every man
who is duly qualified shall take the oath of office at the
beginning of the Congress. Our rules provide that qualification is
shown by a duly authenticated certificate from the Governor of the
State. The gentleman from New Hampshire, Mr. Jenks, has such a
certificate and it has been filed with the Clerk of the House.
The laws of the State of New Hampshire provide that a ballot
commission is the final adjudicator in regard to these matters.
The House then authorized the administration of the oath to Mr.
Jenks.(17)
---------------------------------------------------------------------------
17. Id. at p. 13.
---------------------------------------------------------------------------
CHAPTER 8
Elections and Election Campaigns
D. CERTIFICATES OF ELECTION
Sec. 17. Procedure in Determining Validity; Effect
Once a challenge has been made to the administration of the oath to
a Member-elect, based on the validity of his certificate, the Speaker
requests him to stand aside as the oath is administered to the other
Members en masse. Thereafter the House may either finish the
organizational business or may immediately proceed to determine whether
the challenged Member-elect may be sworn on the strength of his
certificate.(18)
---------------------------------------------------------------------------
18. See Ch. 2, supra, for the procedure of oath administration and
challenges to the right to be sworn. For the procedure
governing the House at convening, both before and after the
adoption of House rules, see Ch. 1, supra.
---------------------------------------------------------------------------
In determining whether a certificate of election is valid or
whether it entitles a Member-elect to a seat in the House, the House
does not bind itself to rigid criteria. The House is the sole judge of
the elections and returns of its Members, and the certificate, prepared
and relayed by state officials, is only prima facie proof of
entitlement to a seat.(19)
---------------------------------------------------------------------------
19. U.S. Const. art. I, Sec. 5, clause 1. For judicial construction of
Congress' power over elections and returns, see USCA Notes to
U.S. Const. art. I, Sec. 5, clause 1.
---------------------------------------------------------------------------
The House and not the Speaker or other official determines whether
a Member may be sworn in, and whether a Member may take the oath with
final right to the seat.(20) If a challenge has been di
[[Page 958]]
rected to a mere irregularity in the form of the certificate, the House
will ordinarily seat the Member-elect and declare him finally entitled
to the seat.(1)
---------------------------------------------------------------------------
20. See Sec. 17.1, infra (Speaker submitted the question to the House
for determination and declined to himself rule).
1. See Sec. 17.1, infra. See also Sec. 17.6, infra (where the Senate
corrected an irregularity in the date for beginning a term by
resolution).
---------------------------------------------------------------------------
If however a certificate is challenged by the institution of an
election contest or by the allegation of election irregularities, the
House may authorize the Member-elect to be sworn but provide that his
final right to the seat be referred to committee. That procedure is
often followed where a certificate is on file in order not to deprive a
state of representation in the House resulting from protracted
proceedings.(2) Of course, an election may be separately
contested under the procedure set forth in 2 USC Sec. Sec. 381 et seq.
without recourse to a challenge on the floor of the right of a Member-
elect to take the oath.
---------------------------------------------------------------------------
2. See Sec. 16.4, supra. The Committee on House Administration has
jurisdiction under House rules over credentials, House Rules
and Manual Sec. 693 (1973), and the matter is often referred to
an elections subcommittee of the Committee on House
Administration.
---------------------------------------------------------------------------
A circumstance which may require the nullification of a certificate
is the intervening death or disappearance of the Member-elect named
therein. Normally the state executive will declare the seat vacant in
such a situation. On one occasion where a Member-elect had disappeared
and was presumed dead but the state executive refused to nullify the
certificate, the House itself declared the seat vacant.(3)
---------------------------------------------------------------------------
3. See Sec. 17.4, in ra.
---------------------------------------------------------------------------
The House does not always require a certificate in order to
determine final right to a seat. Where a Member-elect appears without a
certificate but his election is uncontested and unquestioned, the House
will authorize him to be sworn in by unanimous consent.(4)
In some cases where a certificate is delayed, the state of
representation will deliver informal communications to the House
attesting to the validity of the election of the Member-elect; the
House places reliance on such communications in the absence of a
certificate.(5) Even where a Member-elect arrives without a
certificate and his election is disputed, the House may authorize him
to be sworn in, although a resolution rather than unanimous consent may
be necessary to order such action.(6)
---------------------------------------------------------------------------
4. See Sec. 15.5, supra (oath administration where certificate
delayed).
5. See Sec. 17.5, indra.
6. See Sec. 17.2, infra (pending election contest).
---------------------------------------------------------------------------
[[Page 959]]
-------------------Jurisdiction of House
Sec. 17.1 When objection is made to the irregularity of a certificate,
the question is a matter for the House to determine under the U.S.
Constitution.
On June 2, 1930, when an objection was made to the formal
regularity of a certificate of election, Speaker Nicholas Longworth, of
Ohio, declined to assume the responsibility of refusing administration
of the oath to the Member-elect, but submitted the matter to the House,
since section 5 of article I of the Constitution makes the House the
judge of the elections, returns, and qualifications of its
Members.(7)
---------------------------------------------------------------------------
7. 72 Cong. Rec. 9891, 9892, 71st Cong. 2d Sess., June 2, 1930. The
House affirmed the right of the Member-elect to his seat. The
objection to the form of the certificate was based on the fact
that the certificate stated that the Member-elect was duly
elected as ``Congressman'' instead of ``Representative in
Congress'' (see Sec. 16.1, supra).
---------------------------------------------------------------------------
Sec. 17.2 In one instance, the House by resolution authorized the
Speaker to administer the oath to a Member-elect whose election was
in dispute and who did not possess a certificate of election.
On Mar. 9, 1933, the convening day of the 73d Congress, a
resolution was offered to authorize the Speaker to administer the oath
to John G. Utterback, of Maine, a Member-elect who appeared without
credentials and whose election was being contested under the election
contest statutes.(80) The House adopted the resolution,
despite an objection of Mr. Bertrand H. Snell, of New York, that the
right to take the oath should be referred to the elections committee,
since ``one of the first requisites for any Member of this House to
receive the oath of office is a certificate in legal and due form from
the sovereign State from which he comes.''
---------------------------------------------------------------------------
8. H. Res. 5, 77 Cong. Rec. 71, 72, 73d Cong. 1st Sess. Where Members-
elect appear without credentials and there is no contest or
question as to their elections, the House normally authorizes
the administration of the oath by unanimous consent (see
Sec. 15.5, supra).
---------------------------------------------------------------------------
Nullification of Certificate
Sec. 17.3 House adoption of a resolution, authorizing a committee
investigation of the right of either of two candidates to a seat
and declaring that pending investigation neither candidate shall be
sworn, has the effect of
[[Page 960]]
nullifying a certificate of election issued to one of the
candidates by the state Governor.
On Jan. 3, 1961,(9) the House adopted House Resolution
No. 1, referring the question of the right of two contestants to a seat
from the Fifth Congressional District of Indiana to the Committee on
House Administration. The resolution declared that until the committee
shall have reported, neither contestant should have the right to be
sworn. One of the contestants, George O. Chambers, had a certificate of
election from the Governor of the State of Indiana. By adopting the
resolution, the House nullified the certificate of election of Mr.
Chambers pending the House investigation.
---------------------------------------------------------------------------
9. 107 Cong. Rec. 23, 24, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
The other contestant to the election, J. Edward Roush, who had not
been issued a certificate of election, was finally declared entitled to
the seat by the House on June 14, 1961.(10)
---------------------------------------------------------------------------
10. H. Res. 339, 107 Cong. Rec. 10391, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 17.4 Where a Member-elect disappeared between the issuance of his
certificate of election and the convening of Congress, and the
state executive took no action in relation to the certificate, the
House, after receiving a report from the Clerk setting forth the
circumstances surrounding the disappearance, declared the seat
vacant by resolution.
On Jan. 3, 1973, at the convening of the 93d Congress, Speaker Carl
Albert, of Oklahoma, laid before the House communications from the
Clerk advising him of the disappearance of an aircraft carrying two
Representatives-elect to the House.(11) The Clerk's
communication stated that for one of those Members-elect, the Governor
of the state had declared the congressional seat vacant, pursuant to a
presumptive death jury verdict and a certificate of presumptive death.
---------------------------------------------------------------------------
11. 119 Cong. Rec. 15, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
As to the other Member-elect, Hale Boggs, of Louisiana, the Clerk
advised the Speaker that the attorney general of Louisiana had informed
him that no action had been taken by the Governor and no action was
contemplated to change the status of Mr. Boggs or to change the status
of the certificate of election for Mr. Boggs filed with the Clerk.
The House then adopted a resolution (H. Res. 1) declaring the
[[Page 961]]
seat of Mr. Boggs to be vacant and notifying the Governor of Louisiana
of the existence of the vacancy.(12)
---------------------------------------------------------------------------
12. Id.
---------------------------------------------------------------------------
Reliance on State Communications Absent Certificate
Sec. 17.5 In authorizing the administration of the oath to Members-
elect who appear without credentials, the House may rely upon
communications from state executive officials attesting to the
validity of the election and results.
On Mar. 9, 1933,(13) the House authorized the Speaker to
administer the oath to Member-elect John G. Utterback, of Maine, whose
certificate of election had not yet arrived. Although his election was
being contested, he was sworn on the basis of a letter from the
Governor stating that although Mr. Utterback had apparently received a
majority of the votes cast in the district, the Governor lacked
authority to issue credentials due to the terms of a state law which
required the concurrent action of the Governor and executive counsel
before an election certificate could be issued.
---------------------------------------------------------------------------
13. 77 Cong. Rec. 71, 72, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
Similarly, on Mar. 19, 1964,(14) the House permitted a
Member-elect to be sworn, although her certificate of election had not
arrived, after the Clerk advised the House of the receipt of a
communication from the secretary of state declaring that unofficial
returns indicated the Member-elect was duly elected and that there was
no indication of any election contest or dispute.
---------------------------------------------------------------------------
14. 110 Cong. Rec. 5730, 88th Cong. 2d Sess.
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On Nov. 27, 1963,(15) the House permitted a Member-elect
filling a vacancy to be sworn, although a certificate of election had
not arrived, after the Speaker laid before the House a telegram from
the secretary of state, stating that the Member-elect had been duly
elected according to returns received in the secretary's office.
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15. 109 Cong. Rec. 22838, 88th Cong. 1st Sess.
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On Oct. 30, 1963,(16) a Member-elect to fill a vacancy
was administered the oath in the absence of the certificate of
election, pursuant to a telegram from the state Governor stating that
the Member-elect was duly elected according to unofficial returns.
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16. 109 Cong. Rec. 20612, 88th Cong. 1st Sess.
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On Nov. 15, 1937,(17) the House authorized the
administration of
[[Page 962]]
the oath to three Members-elect to fill vacancies from the State of New
York, where the Clerk submitted to the House a telegram from the
attorney general of the state indicating the election of those Members-
elect.
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17. 82 Cong. Rec. 9, 75th Cong. 2d Sess.
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On Oct. 18, 1965,(18) Mr. Edwin W. Edwards, elected to
fill a vacancy in a congressional seat from Louisiana, was sworn in
although his certificate of election had not arrived. The secretary of
state of Louisiana had transmitted to the Clerk a copy of a
proclamation of the Governor of Louisiana declaring Mr. Edwards to be
duly elected to the House to fill the vacancy, although a genera]
election had not been held; the proclamation was issued because Mr.
Edwards had won the Democratic primary election and was the only
qualified candidate for the general election to fill the vacancy.
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18. 111 Cong. Rec. 27171, 89th Cong. 1st Sess.
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Correction of Date for Beginning of Term (Senate)
Sec. 17.6 The Senate passed a resolution fixing the date a Senator was
sworn, in compliance with federal statute, as the beginning of his
term, notwithstanding an earlier date stated in his certificate of
election.
On Apr. 29, 1957,(19) the Senate passed the following
resolution (S. Res. 129):
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19. 103 Cong. Rec. 6060, 85th Cong. 1st Sess.
Salaries of Members elected for unexpired terms begin on
the date of election (2 USC Sec. 37).
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Whereas the certificate of election of Ralph W. Yarborough,
chosen a Senator on April 2, 1957, during the present session of
the 85th Congress, by the qualified electors of the State of Texas
to fill the vacancy in the term ending at noon on the 3d day of
January 1959, caused by the resignation of Honorable Price Daniel,
states that he was ``duly chosen . . . to represent said State in
the Senate of the United States for an unexpired term beginning on
the 19th day of April 1957, and expiring on the 3d day of January,
1959''; and
Whereas under title 2, section 36, of the United States Code
(49 Stat. 23), and precedents of the Senate based thereon, salaries
of Senators elected during a session to succeed appointees shall
commence on the day they qualify; and
Whereas the said Ralph W. Yarborough has this day duly
qualified by taking, in the open Senate, as provided by Rule II,
the oath required by the Constitution and prescribed by law, and
has subscribed to the same; Therefore, be it
Resolved, That the term of the service of the said Ralph W.
Yarborough shall be deemed to have commenced on this the 29th day
of April 1957.