[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9. Election Contests]
[J. Evidence]
[§ 35. Burden of Proof]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1056-1061]
CHAPTER 9
Election Contests
J. EVIDENCE
Sec. 35. Burden of Proof
Under the Federal Contested Elections Act, the burden is on
contestant to prove that the election results entitled him to
contestee's seat, even where the contestee fails to answer the notice
of contest or otherwise defend as provided by such act,(6)~
and even in opposition to a motion to dismiss submitted by contestee in
advance of submission of formal evidence.(7)~
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6. 2 USC Sec. 385.
7. See Tunno v Veysey, discussed in Sec. 35.7,
infra. -------------------
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Administration of Oath as Prima Facie Evidence of Right to Seat
Sec. 35.1 The administration of the oath to the contestee may establish
his prima facie right to the seat.
In the 1965 Mississippi election contest of Wheadon et al. v
[[Page 1057]]
Abernethy et al. [The Five Mississippi Cases] (Sec. 61.2, infra), the
committee report and comments by members of the committee, during
debate on the resolution dismissing the contest, suggested that the
Committee on Elections regarded the administration of the oath to the
contestees as establishing their prima facie right to the
seats.(8)~
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8. See also the debate on H. Rept. No. 89-602 disposing of the
election contest of Peterson v Gross (Sec. 61.3, infra), for
more authority that the administration of the oath establishes
a prima facie right to the seat, with resulting evidentiary
burdens imposed on the contestant. 111 Cong. Rec. 26499, 89th
Cong. 1st Sess., Oct. 11, 1965.
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Standard of ``Fair Preponderance of Evidence''
Sec. 35.2 In an election contest, contestant has the burden of proof to
establish his case, on the issues raised by the pleadings, by a
fair preponderance of the evidence.
In Scott v Eaton (Sec. 50.2, infra), a 1940 California contest, an
elections committee summarily ruled that a contestant had not
established by a fair preponderance of the evidence that contestee had
violated a California statute or the Federal Corrupt Practices Act, or
that any such violation directly or indirectly prevented contestant
from receiving a majority of votes cast.(9)
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9. As to the ``fair preponderance'' standard, see also Gormley v Goss,
a 1934 Connecticut contest (Sec. 47.9, infra).
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Burden of Showing Results of Election Would Be Changed
Sec. 35.3 In the absence of a showing that the results of the election
would be changed, lack of knowledge of registration laws and
improper enforcement by officials charged with their administration
are not such irregularities as will void the results of an
election.
In Wilson v Granger (Sec. 54.5, infra), a 1948 Utah contest, the
majority report of the Committee on House Administration acknowledged
``widespread and numerous errors and irregularities in many parts of
the district,'' but nevertheless upheld the 104 vote lead of the
contestee because the correct result of the election was not affected
by the irregularities shown. The House agreed to a resolution
dismissing the contest.
Sec. 35.4 Where the contestant alleges that procedural requirements in
an election have not been complied with,
[[Page 1058]]
he has the burden of showing that, due to fraud and irregularity,
the result of the election was contrary to the clearly defined wish
of the constituency involved.
In Clark v Nichols (Sec. 52.1, infra), a 1943 Oklahoma contest, the
Committee on Elections determined that contestant had proven certain
irregularities relating to the failure of local officials in certain
precincts to keep registration books and to comply with various
administrative requirements imposed by state law, but dismissed the
contest for failure of the contestant to bear the burden of showing
fraud and irregularity by any election official whereby contestant was
deprived of votes.
Sec. 35.5 A contestant who alleges that voters had been registered who
did not reside in the precincts where registered must present such
evidence of these irregularities as to leave no doubt of their
existence.
In the 1951 Pennsylvania contested election case of Osser v Scott
(Sec. 56.5, infra), the contestant's testimony enumerated instances
where registrants had given fictitious residence addresses, and
indicated that as to such registrants contestant had filed some 2,000
``strike-off petitions.'' The committee, however, found that no
evidence had been presented to show that any of the illegal registrants
had voted for the contestee. Thus, the committee concluded that the
contestant had not presented sufficient evidence to impeach the
returns.
Sec. 35.6 An elections committee will recommend dismissal of a contest
where there is no evidence that the election was so tainted with
the misconduct of election officers that the true result cannot be
determined.
In the 1951 Pennsylvania contested election case of Osser v Scott
(Sec. 56.5, infra), the contestant contended, as stated in the report,
that he was unable to have ``honest-to-goodness Democrats file for
minority inspector [poll watchers]'' and that the Republican Party
``will register persons as Democrats in order to file them for minority
inspector and to complete the election board.'' However, the committee
recommended dismissal, which the House subsequently agreed to, because
no evidence was presented to show ``that the election was so tainted
with fraud, or with the misconduct of the election officers, that the
true result cannot be determined.''
[[Page 1059]]
Sec. 35.7 The requirement that the contestant in a contested election
case make a claim to the seat carries with it the implication that
the contestant will offer proof of such nature that the House of
Representatives acting on his allegations alone, could seat the
contestant.
Under the new contested election statute, contestant has the burden
of resisting contestee's motion to dismiss, prior to the submission of
evidence and testimony, by presenting sufficient evidence that the
election result would be different or that contestant is entitled to
the seat. Thus, in the 1971 California election contest of Tunno v
Veysey (Sec. 64.1, infra), the committee report recommended dismissal
of the contest where the contestant merely alleged that election
officials had wrongfully and illegally canceled the votes of 10,000
potential voters, without any evidence as to how these potential voters
would have voted.
The committee report noted the following burden of presenting
evidence:
Under the new law then the present contestant, and any future
contestant, when challenged by motion to dismiss, must have
presented, in the first instance, sufficient allegations and
evidence to justify his claim to the seat in order to overcome the
motion to dismiss.
The report continued:
The major flaw in the contestant's case is that he fails to
carry forward with his claim to the seat as required by the
precedents of the House of Representatives and the Federal
Contested Elections Act. A bare claim to the seat as the contestant
makes in his notice of contest without substantiating evidence
ignores the impact of this requirement and any contest based on
this coupled with a request for the seat to be declared vacant must
under the precedents fail. The requirement that the contestant make
a claim to the seat is not a hollow one. It is rather the very
substance of any contest. Such a requirement carries with it the
implication that the contestant will offer proof of such nature
that the House of Representatives acting on his allegations alone
could seat the contestant.
That the contestant in the present case fails to do this is
quite clear. If all of his allegations were found to be correct he
would still not be entitled to the seat. It is perhaps stating the
obvious but a contest for a seat in the House of Representatives is
a matter of most serious import and not something to be undertaken
lightly. It involves the possibility of rejecting the certified
returns of a state and calling into doubt the entire electoral
process. Thus the burden of proof placed on the contestant is
necessarily substantial.
The House agreed to a resolution dismissing the
contest.(10)
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10. This was the first election contest arising under the present
Federal Contested Elections Act, 2 USC Sec. Sec. 381 et seq.
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[[Page 1060]]
Burden of Establishing Claim to Seat
Sec. 35.8 Merely showing that some voters have been precluded from
voting through errors of the election officials does not satisfy
the contestant's burden of establishing his claim for the seat.
In the 1971 California election contest of Tunno v Veysey
(Sec. 64.1, infra), the contestant alleged that the election officials
had wrongfully and illegally canceled the registration of approximately
10,000 voters. However, the contestant did not show how these potential
voters would have voted, and the election committee, after expressing a
hesitancy to invalidate an election under these circumstances, held
that the contestant had not carried through on his burden of
establishing his claim to the seat under the Federal Contested
Elections Act [specifically, 2 USC Sec. Sec. 382, 383] and the
precedents of the House.
Allegations of Improper Expenditures
Sec. 35.9 A contestant has the burden of proof with respect to his
allegations of improper campaign expenditures by contestee.
In Lovette v Reece (Sec. 47.11, infra), a 1934 Tennessee contest,
the committee found that contestant's allegations of improper campaign
expenditures by contestee were based on hearsay evidence related to
other elections, and that the contestant had failed to sustain his
burden of proof.
Evidence Not Compelling Examination of Ballots
Sec. 35.10 To entitle a contestant in an election case to an
examination of the ballots, he must establish (a) that some fraud,
mistake or error has been practiced or committed whereby the result
of the election was incorrect, and a recount would produce a result
contrary to the official returns; and (b) that the ballots since
the election have been so rigorously preserved that there has been
no reasonable opportunity for tampering with them.
In O'Connor v Disney (Sec. 46.3, infra), a 1932 Oklahoma contest, a
committee on elections refused to conduct a partial recount where
contestant had failed to sustain the burden of proving fraud or
irregularities sufficient to change
[[Page 1061]]
the result of the election, and of proving such proper custody of
ballots as to reasonably prevent tampering with them.