[HOUSE PRACTICE, 104th Congress, 2d Session]
[A Guide to the Rules, Precedents and Procedures of the House]
[From the U.S. Government Printing Office via GPO Access]
[DOCID:hp_txt-22]
[Page 459-463]
[[Page 459]]
ELECTION CONTESTS AND DISPUTES
Sec. 1. In General
Sec. 2. Jurisdiction and Powers
Sec. 3. Parties
Sec. 4. Consideration and Disposition
Sec. 5. -- Dismissal
Sec. 6. -- Debate and Voting; Amendment
Research References
1 Hinds Secs. 634-755
6 Cannon Secs. 90-189
2 Deschler Ch 9
U.S. Const. art. I Sec. 5
Manual Sec. 680a
Sec. 1 . In General
Contests for seats in the House are governed by the Federal
Contested Elections Act. 2 USC Secs. 381 et seq. This statute, enacted
in 1969, sets forth the procedure by which a defeated candidate may
have his claim to a seat adjudicated by the House. The act provides
for the filing of notice of contest and other proceedings, for the
taking of testimony of witnesses, and for a House Oversight committee
hearing on the depositions and other papers that have been filed with
the Clerk. 2 USC Secs. 381-396. Acting on committee reports, the
House, by resolution, then disposes of the case. See Sec. 4, infra.
The grounds on which an election contest may be based and the
defenses available to the contestee, as well as the taking of
testimony and other procedures followed in determining the contest in
committee, are treated elsewhere. See Deschler Ch 9 and Ch 9 Appendix
for complete treatment of contested election cases beginning in the
65th Congress in 1917.
Notwithstanding the availability of the statutory election contest
procedures discussed herein, some election disputes have been
presented directly to the House for consideration and committee
investigation. See for example
[[Page 460]]
H. Rept. No. 99-58 (1985). An investigation of a challenged election
has been initiated pursuant to:
<box> Action by the House in directly referring the question of a
Member-elect's right to a seat to the Committee on House
Oversight (Deschler Ch 2 Sec. 6).
<box> A protest filed by an elector of the district concerned
(Deschler Ch 9 Sec. 17.1).
<box> A memorial filed by another person challenging the
qualifications of the Member-elect (Deschler Ch 9 Sec. 17.3).
The latter two procedures have been rarely invoked, however, and they
preceded the adoption of the modern contested election statute.
The right to a seat in the House may also be affected by House
action on a motion to expel, where a sitting Member's behavior or
conduct is at issue. Such motions are discussed elsewhere in this
work. See Misconduct; Sanctions.
Sec. 2 . Jurisdiction and Powers
Generally
The Constitution authorizes each House to be the judge of the
elections, returns, and qualifications of its Members. U.S. Const.
art. I Sec. 5. Thus, the House is entitled to judge contested
elections involving its seats, and is not bound by agreement of the
parties or decisions of state tribunals. 6 Cannon Secs. 90-92. The
determination by the House as to the right to the seat is final, this
being considered a nonjusticiable political question. Roudebush v
Hartke, 405 US 15 (1972).
Pursuant to the contested election statute, the House acquires
jurisdiction of an election contest upon the filing of a notice of
contest by a defeated candidate. Deschler Ch 9 Sec. 4.1. Ordinarily,
the papers relating to the contest are transmitted by the Clerk to the
Committee on House Oversight [formerly House Administration] pursuant
to the statute (2 USC Sec. 393(b)), without formal referral or other
action by the House (Deschler Ch 9 Sec. 4), that committee having
jurisdiction of election contests under the House rules. Rule X clause
1(h)(12). However, the House itself may initiate an election
investigation if a Member-elect's right to take the oath is challenged
by another Member, by referring the question to the committee.
Deschler Ch 2 Sec. 6. The House may also summarily dismiss a contest
by the adoption of a resolution providing therefor. Deschler Ch 9
Secs. 4.4, 4.5.
Where two persons claim the same seat from the same district, the
House may refuse to permit either candidate to take the oath pending a
determination of their rights by the House. Deschler Ch 9 Sec. 4.3.
[[Page 461]]
Election contests may be investigated by a special committee or by
subcommittees of the Committee on House Oversight (Deschler Ch 9
Secs. 5.2-5.4), or by ad hoc panels. See, for example, 95-1, May 9,
1977, p 13953.
Recounts of Votes
To obtain an order from the House for a recount of votes in an
election contest, the contestant should show that he has exhausted
state court remedies to secure a recount under state law (Deschler Ch
9 Sec. 41.1), and that evidence and testimony have been taken in the
matter (Deschler Ch 9 Sec. 41.3). Although the committee with
jurisdiction has authority to require a recount of votes for a
contested seat in the House, the committee has declined to order such
a recount where the highest court of the state has conducted a recount
and where the contestant does not demonstrate that a recount would
change the result of the election. 96-2, Mar. 4, 1980, pp 4490, 4491.
Sec. 3 . Parties
Under the controlling statute, ``a candidate for election'' to the
House ``in the last preceding election'' is given the right to
initiate a contest by filing the notice required by law. 2 USC
Sec. 382a. The statute defines ``candidate'' to mean one whose name
was on the official ballot or who received write-in votes under
certain conditions. 2 USC Sec. 381b. Thus, a candidate in the primary
whose name was not on the ballot in the general election lacks the
requisite standing to initiate a contest, and this was true even under
the former contested election statute. Deschler Ch 9 Sec. 19; 90-1,
July 11, 1967, p 18290. Similarly, the House has dismissed a contest
filed by one who was a candidate in a special election to fill a
vacancy but not a candidate in the run-off election. 95-1, Oct. 27,
1977, p 35408.
A lack of standing of contestant to initiate the contest is a
defense which may be raised, at the option of the contestee, by
motion. 2 USC Sec. 383(b).
Sec. 4 . Consideration and Disposition
Precedence and Privilege
Under the Constitution (art. I Sec. 5) and Rule XI clause 4(a),
the consideration of a contested election case is of high privilege (3
Hinds Secs. 2579, 2580), and takes precedence over the consideration
of veto messages from the President (5 Hinds Secs. 6641, 6642),
questions of privilege (3 Hinds Sec. 2626), special orders (3 Hinds
Sec. 2554), and business in order on Calendar Wednesday (8 Cannon
Sec. 2276).
[[Page 462]]
Resolutions and Reports
The House generally disposes of election contests by acting on a
resolution which, under the modern practice, is reported from the
Committee on House Oversight. See 95-1, May 9, 1977, pp 13953, 13954
(dismissing several cases); 96-2, Mar. 4, 1980, p 4491. A resolution
is used to dispose of the case even where dismissal has been agreed to
by the parties pursuant to a stipulation. Deschler Ch 9 Sec. 52.5.
Committee reports relating to the right of Members to their seats
are privileged and are so reported from the floor. Rule XI clause
4(a); 87-1, June 13, 1961, p 10160; 90-1, June 14, 1967, p 15858.
Resolutions disposing of an election contest are also privileged and
may be called up any time (Deschler Ch 9 Sec. 42.3; 86-1, Sept. 8,
1959, p 18610; 89-1, Sept. 17, 1965, p 24263), even though not
reported from committee (Deschler Ch 9 Sec. 42.4).
The resolution may:
<box> Declare one of the parties entitled to the seat. Deschler Ch 9
Sec. 42.2; 90-1, July 11, 1967, p 18291; 99-1, Apr. 30, 1985, p
9801.
<box> Declare one of the parties to be not competent to bring the
contest. 89-1, Jan. 19, 1965, pp 951-957.
<box> Declare that neither party be admitted to the seat pending a
committee investigation. Deschler Ch 9 Sec. 42.15; 99-1, Jan.
3, 1985, p 381.
<box> Declare the seat vacant. Deschler Ch 9 Secs. 42.11, 42.12.
<box> Dismiss the contest. See Sec. 5, infra.
<box> Provide for payment or reimbursement from the contingent fund
for costs incurred in the contest or its investigation.
Deschler Ch 9 Secs. 45.1-45.6; 87-1, June 14, 1961, p 10391.
See also 2 USC Sec. 396, permitting the committee to allow any
party reimbursement for reasonable expenses in the case.
Sec. 5 . -- Dismissal
A motion to dismiss will lie under the Federal Contested Elections
Act to permit the contestee to interpose certain defenses to the
contestant's claim or notice of contest. 2 USC Sec. 383b. Such a
motion is acted on by the House pursuant to a privileged resolution
reported from the Committee on House Oversight. See 95-1, May 9, 1977,
p 13953; 96-2, Mar. 4, 1980, p 4491.
Under this statute, the burden of proof is on the contestant to
present sufficient evidence, even prior to the formal submission of
testimony, to overcome the motion to dismiss. Deschler Ch 9 Sec. 35.7;
95-1, May 9, 1977, pp 13953, 13954; 99-1, July 24, 1985, p 20180. A
motion to dismiss will lie where the contestant has not adduced
evidence or forwarded testimony in the manner prescribed by law
(Deschler Ch 9 Secs. 25.1-25.5) or fails to demonstrate that there is
some documentable basis for his allegations (96-
[[Page 463]]
1, Mar. 29, 1979, pp 6832, 6833). Under the statute, the contestant
has the burden of proving sufficient evidence to show that the result
of the election would be changed (95-1, May 9, 1977, p 13954), or that
the House should conduct a complete recount (99-1, Oct. 2, 1985, p
25665). Evidence that the contestant received more votes than the
contestee in a prior election is insufficient. 95-1, Oct. 27, 1977, p
35408. Merely suggesting the probability of error in the tabulation of
votes, without offering evidence of a change in the election result,
is likewise insufficient. 95-1, May 9, 1977, p 13954.
Sec. 6 . -- Debate and Voting; Amendment
Generally
Resolutions disposing of election contests have been determined by
voice vote and without debate. Deschler Ch 9 Sec. 42.5. Normally,
however, debate on the resolution is under the hour rule, with
extensions of time permitted by unanimous consent. The debate may be
divided among certain Members, with the previous question to be
considered as ordered at the conclusion thereof. Deschler Ch 9
Sec. 42.9; 87-1, June 14, 1961, p 10371. The Member supporting the
recommendation of the committee majority in the contest is entitled to
close debate. Deschler Ch 9 Sec. 42.8.
The resolution may be subject to demand for a division of the
question if its form permits (Deschler Ch 9 Sec. 42.14) and to a
motion to recommit with instructions (Deschler Ch 9 Sec. 42.16). If
the manager of the resolution yields for an amendment, he loses the
floor to the proponent of the amendment. 89-1, Sept. 17, 1965, p
24290. The resolution is not subject to a substitute amendment
therefor unless the Member controlling the time for debate yields for
that purpose or unless the previous question is voted down. Deschler
Ch 9 Sec. 42.17.
Participation by the Parties
The parties to an election contest may be permitted on the floor
(under Rule XXXII) during the consideration of the case in the House.
Deschler Ch 9 Sec. 42.6; 89-1, Sept. 17, 1965, p 24267.
A contestee, as a sitting Member, may participate in debate on the
resolution disposing of the contest (Deschler Ch 9 Sec. 42.7) or
insert remarks in the Record (89-1, Sept. 17, 1965, p 24285), and he
may vote on the resolution (99-1, Oct. 2, 1985, p 25670).