[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9. Election Contests]
[H. Taking of Testimony; Depositions]
[§ 27. Generally; Time]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1041-1046]
CHAPTER 9
Election Contests
H. TAKING OF TESTIMONY; DEPOSITIONS
Sec. 27. Generally; Time
Under the Federal Contested Elections Act, either party may take
the testimony by deposition of any person, including the opposing
party, either for discovery purposes or for use as evidence in the case
or for both purposes.(12)~
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12. 2 USC Sec. 386(a).
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Contestant may take testimony within 30 days after service of the
answer, or, if no answer is served, within 30 days after the time for
answer has expired. Contestee may take testimony within 30 days after
contestant's time for taking testimony has expired. Ten days is
permitted for the taking of rebuttal testimony.(13)~
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13. 2 USC Sec. 368(c).
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The testimony must be taken before an officer authorized by law to
administer oaths.(14)~
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14. 2 USC Sec. 386(d).
As for pay of witnesses subpenaed to appear before the
House or any of its committees, see Rule XXXV, House Rules and
Manual Sec. 931 (1973).
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A party desiring to take a deposition must serve written notice on
the opposing party not later than two days before the examination,
unless the parties stipulate in writing to the
contrary.(15)~
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15. 2 USC Sec. 387 (a), (b).
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Where a witness who has been subpenaed under the Federal Contested
Elections Act willfully makes default, or refuses to answer a pertinent
question, he is subject to both fine and imprisonment.(16)~
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16. 2 USC Sec. 390, authorizing a fine of not more than $1,000 or
imprisonment of not more than 12 months, or both.
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Except for the time for serving and filing a notice of contest, the
Committee on House Administration, for good cause shown, may at any
time in its discretion order a period enlarged if request therefor is
made before the expiration of the period originally prescribed or
ordered; or, on motion made after the expiration of the specified
period, it may permit the act to be done where the failure to act was
the result of excusable neglect.(17)~
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17. 17. 2 USC Sec. 394(c).
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[[Page 1042]]
Dismissal for Failure to Take Testimony
Within Statutory Period
Sec. 27.1 Failure to take testimony within the time required by law and
committee rules governing contested elections results in dismissal
by the House of contestant's notice of intention to contest an
election.
In 1949, in the Iowa contested election of Browner v Cunningham
(Sec. 55.1, infra), the House agreed without debate to dismiss the
contest after more than 90 days had elapsed from the filing of notice
and no testimony ``of any character, kind, or nature,'' according to
the committee report, had been received by the Clerk in support of the
allegations set forth in the notice of intention to contest the
election.(18)~
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18. See also Fuller v Davies (Sec. 55.2, infra), and Thierry v Feighan
(Sec. 55.4, infra), contests from New York and Ohio,
respectively, which were settled by the same resolution for the
same reason.
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Sec. 27.2 If the testimony is not taken within the time and in the
manner required by statute, a motion to dismiss will lie.
In Hicks v Dondero (Sec. 53.1, infra), a 1945 Michigan contest, the
contestant submitted copies of transcripts of testimony taken before a
local Michigan canvassing board prior to the initiation of the contest.
This material was not received by the Clerk within the time prescribed
by law, and had not been properly addressed or transmitted. Contestee's
motion to dismiss the contest, and contestant's affidavit in opposition
to that motion, were filed. A resolution dismissing the contest was
agreed to by voice vote and without debate.
Sec. 27.3 Contestant, a candidate for the party nomination in the
primary but not in the general election, failed to take testimony
within the time prescribed by law.
In the 1951 Georgia contested election case of Lowe v Davis
(Sec. 56.3, infr ), the Committee on House Administration unanimously
recommended the adoption of a resolution, to which the House
subsequently agreed, that the contest should be dismissed. The report
states that the contestant did not comply with the procedural statutory
time requirements for conducting a contest, specifically the taking of
testimony pursuant to 2 USC Sec. 203.(19)~
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19. Now 2 USC Sec. 386.
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Sec. 27.4 Where no testimony has been taken within the time
[[Page 1043]]
prescribed by law and contestee alleges that the notice of contest
does not specify with particularity the grounds upon which the
contestant relies, the House has agreed to dismissal of a contest
without debate.
In Roberts v Douglas (Sec. 54.4, infra), a 1947 California contest,
the Clerk transmitted the notice of contest to the Speaker. (The
contest appeared to have abated as neither party had taken testimony
within the time prescribed.) The Speaker referred the letter, the
notice of contest, a motion for dismissal from the contestee and a
letter from her attorney in support thereof, to the Committee on House
Administration. Subsequently the House dismissed the contest on a voice
vote and without debate.
Sec. 27.5 A motion to dismiss is available to contestee where the
contestant has failed to take testimony within the time prescribed
by law, even though contestee's answer to the notice was not filed
within the required period.
In Woodward v O'Brien (Sec. 54.6, infra), a 1947 Illinois contest,
the House dismissed the contest after contestee had moved to dismiss on
the grounds that no testimony had been taken by contestant, during the
prescribed period, though such motion recited that contestee had not
filed his answer within the time required by statute.
Failure to Forward Testimony to Clerk
Sec. 27.6 A failure to forward testimony to the Clerk within the 30-day
period was raised in a letter to the House as a bar to prevent
contestant from continuing with the contest, but this request was
not considered by the elections committee.
In Clark v Nichols (Sec. 52.1, infra), a 1943 Oklahoma contest, the
contestee requested the House to prevent contestant from proceeding
with the contest because of his failure to comply with the 30-day
period, as required by law (former 2 USC Sec. 231); the committee did
not consider the request that contestant be barred from continuing the
contest, but nevertheless recommended that the contest be dismissed on
other grounds.
Extensions of Time for Taking Testimony
Sec. 27.7 Where testimony is taken pursuant to a con
[[Page 1044]]
tested elections statute, and the contestee is charged with a wide
variety of statutory violations, an elections committee may
conclude that it cannot properly decide the contest without the
taking of further testimony.
In Lanzetta v Marcantonio (Sec. 48.1, infra), a 1936 New York
contest, contestee was charged with violations of ``nearly all of the
elections laws including intimidation of voters, violation of the
Corrupt Practices Act, illegal and excessive expenditure of money,
failure to account for various contributions, and inciting and leading
riots.'' The committee concluded that it could not properly decide the
contest without causing further testimony to be taken, and that further
testimony could not be taken due to the approach of adjournment sine
die of the 74th Congress.
Sec. 27.8 The statutory period during which a contestant is permitted
to take testimony is tolled during the time that ballots sought to
be subpenaed by his appointed official are in the custody of a
court and unavailable.
In Kunz v Granata (Sec. 46.2, infra), a 1932 Illinois contest, the
question arose as to whether the statutory period allowed for the
taking of testimony had expired. The contestant had applied for an
appointment of a notary public to obtain testimony on his behalf, and
he in turn had served a subpena upon the election officials requiring
them to produce ballots and certain other materials pertaining to the
election. These actions proved ineffective, however, because
contestee's counsel had obtained a court order impounding the ballots
cast in the election. Under these circumstances, the elections
committee majority concluded that the ballots were ``in custodia
legis'' and that the time during which the ballots were so held should
not be considered in determining the statutory period in which the
contestant was allowed to take testimony.
Sec. 27.9 An elections committee may give consideration to testimony
laid before it by the Clerk pursuant to the election contest law,
though not taken within the time required by the statute, where the
committee finds justification for the delay.
In Lanzetta v Marcantonio (Sec. 48.1, infra), a 1936 New York
contest, more than 4,000 pages of testimony and exhibits were taken,
but the testimony of con
[[Page 1045]]
testant was not taken until after the expiration of the 90-day period
prescribed by former section 203, title 2 of the United States Code.
The Clerk did not order printed that portion of the testimony taken
after the expiration of the required time, but the elections committee,
having found some justification for the delay, considered all testimony
that was made available to it by the Clerk.
Sec. 27.10 An extension of time for taking testimony, may be in the
form of a resolution granting a total of 65 days, with the
contestant to take testimony during the first 30 days, the
contestee to take testimony during the succeeding 30 days, and the
contestant to take testimony in rebuttal during the remaining five
days.
See the 1943 Illinois election contest of Moreland v Schuetz
(Sec. 52.3, infra), where the House agreed to a resolution extending
the time allowed for taking testimony to 65 days, based on a showing of
``good cause'' by the contestant.
Extensions of Time for Good Cause
Sec. 27.11 An extension of time for the taking of testimony for an
election contest will be granted only upon a showing of good cause.
In Moreland v Schuetz (Sec. 52.3, infra), a 1943 Illinois contest,
good cause for an extension of time was shown where contestant alleged
certain irregularities in the counting of write-in votes and ``split-
ticket'' ballots, but was unable to establish such allegations within
the time required by law, because the election officials involved were
unavailable.
Sec. 27.12 Extensions of time for taking testimony were based on the
fact that time was needed to prepare an application for a recount.
In Sullivan v Miller (Sec. 52.5, infra), a 1943 Missouri contest,
contestant, based on time consumed by both parties in preparing a joint
application for recount, asked for 40 additional days in which to
prepare testimony and for 40 days thereafter for contestee to take
testimony. The House adopted a resolution based on a committee's
recommendation that each party be given a 30-day extension of time for
taking testimony, with an additional five days for contestant to
compile rebuttal testimony.
Sec. 27.13 The sufficiency of reasons shown for granting ad
[[Page 1046]]
ditional time to take testimony may be referred to an elections
committee.
In the 1957 Iowa election contest of Carter v LeCompte (Sec. 57.1,
infra), the contestant petitioned the House for an additional 20 days
to take testimony. The request was ultimately referred to the
Subcommittee on Elections which considered the House precedents on the
requested extension before unanimously determining that the contestant
had shown insufficient reasons for the extension. The Committee on
House Administration unanimously adopted the subcommittee opinion. No
formal report on the issue was made to the House.
Subsequent Authorization for Informal Extension
Sec. 27.14 The Committee on House Administration has informally granted
extensions of time to parties in a contest for taking testimony
without the House having adopted a resolution to that effect, and
has subsequently authorized such extensions in its final report.
In Wilson v Granger (Sec. 54.5, infra), a 1948 Utah contest, the
delay of over a year by the parties in filing the required papers with
the Clerk as provided by statute is explained merely by the statement
in the report that ``the extensions of time heretofore granted in this
contest by the Committee on House Administration are hereby authorized
and approved.''
Stipulation of Parties for Extension of Time
Sec. 27.15 The parties to a contest may agree to a stipulation ret
questing an extension of time for the contestant to compensate for
an adjournment taken at the contestee's request.
In the New York contested election case of Macy v Greenwood
(Sec. 56.4, infra), arising out of the 1950 election, the contestant,
at the contestee's request, adjourned the calling of two witnesses for
six days during the 40-day period allotted for the taking of testimony
under 2 USC Sec. Sec. 201 et seq. Both parties had thus agreed to a
compensatory extension of six days, subject to approval by the House.
The House agreed by resoltion tn the extension.