[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-23]
[Page 465-468]
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ELECTION OF MEMBERS
Sec. 1. In General
Sec. 2. Campaign Practices
Sec. 3. Certificates of Election
Sec. 4. Resignations; Filling Vacancies
Research References
1 Hinds Secs. 277-633
6 Cannon Secs. 38-89
2 Deschler Ch 8
U.S. Const. art. I Sec. 5 clause 1
Sec. 1 . In General
Generally
Although Congress has enacted extensive legislation to protect the
right to vote and to secure the process against fraud, bribery, and
illegal conduct, the actual mechanism for conducting and holding
congressional elections has been left largely to the states. Deschler
Ch 8 Secs. 5, 7. However, under the Constitution, 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 (U.S. Const. art. I Sec. 5 clause 1). Deschler Ch 8 Sec. 5.
Therefore, 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 refuse to
administer the oath to a Member-elect. Deschler Ch 8 Sec. 7. See
Deschler Ch 8 for complete treatment of elections and election
campaigns.
Apportionment and Reapportionment
Since the admission of Alaska and Hawaii to statehood, the total
membership of the House has remained fixed by statute at 435 seats.
Manual Sec. 227. By law, these 435 seats are automatically apportioned
among the states according to each decennial census. 2 USC Sec. 2a.
Under this law, a statistical model known as the ``method of equal
proportions'' is used to determine the number of Representatives to
which each state is entitled. While other methods for apportioning
House seats may be permitted, Congress' choice of the equal
proportions method has been upheld under the Constitution and was
plainly intended to reach as close as practicable to the goal of ``one
person, one vote.'' Com. of Mass. v Mosbacher, D. Mass.,
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785 F Supp 230 (1992), reversed on other grounds 112 S. Ct. 2767. The
method of apportioning the seats in the House is vested exclusively in
Congress and neither states nor courts may direct greater or lesser
representation than that allocated by statute. Deschler Ch 8 Sec. 1.
Reapportionment proposals have been considered in the House, but
have no privileged status under the Constitution and cannot interrupt
the regular proceedings of the House. Deschler Ch 8 Sec. 2.
Reapportionment legislation has also been considered in the Committee
of the Whole. Deschler Ch 8 Sec. 2.5. Proposals relating to
apportionment are within the jurisdiction of the Committee on the
Judiciary. Manual Sec. 679a.
Sec. 2 . Campaign Practices
The power of Congress to regulate the election process extends to
the regulation of campaign practices. Deschler Ch 8 Sec. 10. The
Federal Election Campaign Act established a new and comprehensive code
for campaign practices and expenditures, and contains provisions for
investigations and enforcement. 2 USC Secs. 431 et seq.
The Federal Election Commission is the agency of U.S. government
empowered with primary jurisdiction with respect to administration,
interpretation and civil enforcement of the Federal Election Campaign
Act. Federal Election Com'n v American Intern. Demographic Services,
Inc., 629 F Supp 317 (1986). But the House itself has the power to
judge elections and to determine whether a candidate was improperly
elected to a seat. If violations of the election campaign statutes are
so extensive as to render an election void, the House may deny the
right to a seat. Deschler Ch 8 Sec. 12.
The Committee on House Oversight has general jurisdiction over
measures relating to the election of the President, Vice President, or
Members of Congress and over measures relating to the raising,
reporting, or use of campaign contributions for House candidates. Rule
X clause 1(h). Investigations of specific elections or election
practices are usually undertaken pursuant to committee action. (See,
for example, 99-1, Apr. 30, 1985, p 9801 [ballot recount].)
Investigations of Members' elections may be conducted under the
statutory election-contest procedures (see Election Contests and
Disputes), or pursuant to a privileged resolution reported from the
Committee on Rules (93-2, Aug. 21, 1974, p 29653) or offered on the
floor of the House as questions of privilege. Manual Sec. 662.
However, investigations have also been undertaken by select committees
created to review election campaigns and proceedings. Such committees
have been created by privileged resolution reported from the Committee
on Rules. 92-2, Feb. 28, 1972, p 5717; 93-1, Jan. 15, 1973, p 1058;
93-1, Mar. 15, 1973, p 7957.
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A Member's resignation during the investigation effectively
terminates the investigation, since the Committee on House Oversight
(formerly House Administration) has no further jurisdiction in the
matter thereafter. See 95-1, May 4, 1977, p 13391.
A resolution from the Committee on House Oversight relative to the
right of a Member to his seat, after investigation of his campaign, is
reported and considered as privileged. See Rule XI clause 4(a);
Deschler Ch 8 Sec. 13.5. See also 99-1, Apr. 30, 1985, p 9801.
Sec. 3 . Certificates of Election
Certificates of election are issued by each state after
congressional elections have been conducted and the results tabulated.
The certificates, also termed ``credentials'' are sent to the Clerk of
the House for use in composing the Clerk's roll. While the certificate
is not essential to the administration of the oath, any Member or
Member-elect has the right to object thereto, by delivering a
challenge either to the validity of the election or to the validity of
the certificate itself. Deschler Ch 8 Sec. 15. Challenging the
administration of the oath, see Oaths.
The House (and not the Speaker or other official) determines
whether a Member may be sworn in after an election certificate has
been challenged. If a challenge has been directed 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.
See Deschler Ch 8 Sec. 17.1. But if a certificate is challenged
through 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. Deschler Ch 8 Sec. 16.4. Still another
procedural option that may be pursued by the House is for it to
declare that neither candidate be sworn and that the question of prima
facie and final right to the seat be referred to committee. 99-1, Jan.
3, 1985, p 381.
A circumstance which may require the nullification of a
certificate is the intervening death or disappearance of the Member-
elect named therein. 93-1, Jan. 3, 1973, pp 15, 16.
The House does not always require a certificate in seating a
Member-elect. If he appears without a certificate but his election is
uncontested and unquestioned, the House may authorize him to be sworn
by unanimous consent. 92-1, May 27, 1971, p 17231; 97-1, July 28,
1981, p 17686. A photographic copy of the original certificate has
been accepted without invoking
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the unanimous-consent procedure. 97-1, July 9, 1981, p 15215. 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 may accept such
communications in the absence of a certificate. 88-1, Oct. 30, 1963, p
20612; 89-2, Mar. 30, 1966, p 7219; 95-2, Feb. 21, 1978, p 3852. Even
where a Member-elect arrives without a certificate and his election is
disputed, the House may by resolution authorize him to be sworn in.
Deschler Ch 8 Sec. 17.2.
Sec. 4 . Resignations; Filling Vacancies
A Member properly submits his resignation to an official
designated by state law and simply informs the House of his doing so,
the latter communication being satisfactory evidence of the
resignation. 1 Hinds Sec. 567; 103-1, Jan. 21, 1993, p ____.
Where a vacancy arises in the House by death, resignation,
declination, or action of the House, the vacancy must be officially
declared in order that a special election may be held. Usually, the
state executive declares the vacancy to exist, particularly in cases
of death, declination, or resignation. Deschler Ch 8 Sec. 9. 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 initiate the action to have the seat declared vacant. 93-1, Jan.
3, 1973, pp 15, 16. Such a declaration is proper where independent
House action has created a vacancy by expulsion or exclusion of a
Member. Deschler Ch 8 Sec. 9. In such cases, the House, by privileged
resolution, directs the Speaker to notify the state executive. Manual
Sec. 22. The state executive is also notified where the Member resigns
directly to the Speaker, rather than to the Governor of his home state
as is customary.
A resolution declaring a seat vacant is used where a Member-elect
is unable to take the oath or to resign due to an incapacitating
illness. 97-1, Feb. 24, 1981, pp 2916-2918. In this 1981 instance, a
letter to the Speaker from the attending physician was inserted in the
Record to document the physical condition of the Member-elect. The
letter stated that she was in a coma and would be unable to take the
oath.