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Chapter XXI. the HOUSE the JUDGE of CONTESTED ELECTIONS

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Chapter XXI. the HOUSE the JUDGE of CONTESTED ELECTIONS Chapter XXI. THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 1. Provision of the Constitution. Section 634.1 2. Functions of Elections Committee. Sections 635, 636. 3. House not bound by returns of State authorities. Sections 637, 638. 4. Relations of House to acts of canvassing officers. Sections 639–645.2 5. House ascertains intent of voter when ballot is ambiguous. Sections 646–650. 6. Discretion of House in investigating elections. Sections 651–653.3 7. Practice in making decisions. Sections 654–656.4 8. Privileges of contestant and returned Member in debate. Sections 657–672.5 9. General practice. Sections 673–677.6 634. The House is the judge of the elections, returns, and qualifications of its own Members.—‘‘Each House shall be the judge of the elections, returns, and qualifications, of its own Members.’’ 7 1 House may not delegate this constitutional function. (Sec. 608 of this volume.) Elections of Dele- gates as well as those of Members investigated. (Sec. 772 of this volume.) 2 House respects the State laws. (Sec. 822 of this volume, and secs. 967 and 1011 of Vol. II.) As to duty of House to respect the construction of State laws made by State officers and courts. (Secs. 346, 352, 423, 521, 525, 574, 608, 630, 731 of this volume, and secs. 856, 909, 959, 996, 1002, 1041, 1048, 1056, 1069, 1071, 1105, 1121 of Vol. II.) 3 House may set aside procedure prescribed by law for conducting contests and prescribe new proce- dure in whole or in part. (Secs. 330, 339, 559, 597, 598 of this volume, and secs. 965, 1042, and 1070 of Vol. 11.) But the House does not unnecessarily set aside the recommendations of the law. (Sec. 719 of this volume and 852 of Vol. II.) See also the cases of Letcher v. Moore (sec. 53) and Blakely v. Golladay (sec. 322). 4 Senate decisions that an election case once decided is res adjudicata, and not to be reopened. (Secs. 344, 357, 546, 629, 825, 833.) House reopens the Mississippi case in 1837. (Sec. 518.) Effect of laying on the table a resolution relating to the right of a Member to his seat. (Secs. 461, 467, 618.) Effect of negative votes on affirmative declarations as to Member’s right to his seat. (Sec. 2588 of Vol. III.) 5 Instance wherein the privileges of the floor were denied to a claimant to a seat. (Sec. 315.) Senate declines to admit contestant to the floor (sec. 546); and also declines to hear contestant in debate (sec. 392). 6 A contest was maintained although the returned Member had resigned. (Sec. 985 of Vol. II.) A proposition relating to the right of a Member to his seat presents a question of privilege. (Secs. 2579–2596 of Vol. III.) 7 Constitution, Art. I, sec. 5. 847 VerDate 11-MAY-2000 14:44 Feb 13, 2001 Jkt 063201 PO 00000 Frm 00847 Fmt 8687 Sfmt 8687 E:\HR\OC\G201V1.007 pfrm11 PsN: G201V1 848 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 635 635. The House has declared that an election committee should act as a judicial body, according to the rules of law.—On January 24, 1870,1 Mr. Albert G. Burr, of Illinois, proposed the following resolution: Resolved, That from the nature of its duties the Committee of Elections of the House of Represent- atives is a judicial body, and in deciding contested cases referred to such committee the members thereof should act according to all the rules of law, without partiality or prejudice, as fully as though under special oath in each particular case so decided. A motion to lay this resolution on the table was decided in the negative, yeas 44, nays 129. The resolution was then agreed to, yeas 140, nays 23. At a later day in this session—February 9 2—this resolution was referred to in debate, several Members explaining their attitude. 636. Instance wherein a Member of the House was authorized to act as a member of the Elections Committee during the consideration of cer- tain cases.—On December 7, 1869, the House adopted a resolution authorizing Mr. Michael C. Kerr, of Indiana, to act as a member of the Committee on Elections in the consideration of the pending election cases from the State of Louisiana.3 Mr. Kerr had been a member of the committee in the preceding Congress. 637. The Georgia election case of Spaulding v. Mead in the Ninth Con- gress. The certificate of the governor of a State as to the election of a Member is only prima facie evidence of the fact. The certificate of a State executive, issued in strict accordance with State law, does not prevent examination of the votes by the House, and a reversal of the return. Discussion of the House’s right to judge of the elections and returns of its Members, as related to State laws. The Elections Committee in 1805 declined to examine a contention sought to be established by ex parte testimony. On December 18, 1805,4 the Committee on Elections reported in the contested election case of Spaulding v. Mead, of Georgia. The committee found that the law of Georgia required the county magistrates presiding at the election to transmit their returns to the governor of the State within twenty days after closing the poll; and required the governor, within five days after the expiration of the said twenty days, to count the votes returned, and immediately thereafter to issue his proclama- tion declaring the result, and grant a certificate thereof under the great seal of the State. The votes of three counties were not returned within the twenty days, nor within the further term of five days thereafter. The governor, complying with the terms of the law, issued a certificate to Cowles Mead, who had a majority of the votes so far as received when the certificate was issued. When the returns from the three counties were received it appeared that they changed the result and gave the majority to Thomas Spaulding. It does 1 Second session Forty-first Congress, Journal, p. 190; Globe, pp. 709, 710. 2 Globe, pp. 1158–1160. 3 Second session Forty-first Congress, Journal, p. 28; Globe, p. 22. 4 First session Ninth Congress, Contested Elections in Congress from 1789 to 1834, p. 157. VerDate 11-MAY-2000 14:44 Feb 13, 2001 Jkt 063201 PO 00000 Frm 00848 Fmt 8687 Sfmt 8687 E:\HR\OC\G201V1.007 pfrm11 PsN: G201V1 § 638 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 849 not appear that irregularities sufficient to change this majority for Mr. Spaulding were alleged in the three counties. The committee declined to examine the conten- tion sought to be established by ex parte testimony, and disputed by contestee, that the delay in forwarding the late returns was caused by a hurricane which injured the roads. The committee found that, as the votes in the three counties in question were good and lawful, no action either by voters or candidate requiring their forfeiture, they should be counted by the House, the certificate of the governor although made in accordance with the State law being only prima facie evidence, and not conclusive on the House. Therefore the committee reported that Cowles Mead was not entitled to the seat, but that Thomas Spaulding was entitled to it. The report was debated at length on the constitutional point as to what extent the House was judge of the elections and returns of its own Members. It was con- tended on the one side that the House must exercise its right in accordance with the fixed rules of the State of Georgia, that State having the constitutional right to prescribe them, and they being conclusive until revoked by Congress. On the other hand, it was contended that the power of judging the returns was different from the State power of determining time, place, and manner of elections. The law of Georgia could only be considered as constituting the governor the organ of information to this House, the only tribunal to which the returns can ultimately be made. The fact that the governor had counted only a part of the votes could not prevent this House counting all of them. The power of the House to Judge could not be concluded by a State law or executive. The House decided, yeas 68, nays 53, that Cowles Mead was not entitled to the seat; and by a vote of yeas 68, nays 53, that Thomas Spaulding was entitled to a seat. 638. The New York election case of Colden v. Sharpe in the Seven- teenth Congress. Votes fairly and honestly given should not be set aside for the omission or error of the returning officer. Instance wherein the House decided an election contest against a returned Member who had not appeared to claim the seat. On December 12, 1821,1 the House concurred with the report of the Committee on Elections in the case of Colden v. Sharpe, from New York, seating Mr. Colden and declaring Mr. Sharpe not entitled to the seat. It appeared that the majority of votes were cast for ‘‘Mr. Cadwallader D. Colden,’’ but that by errors of returning officers 220 votes were returned as for ‘‘Cadwallader D. Colder’’ and 395 for ‘‘Cadwallader Colden,’’ although all these votes had really been cast for the contestant under his appropriate name, as was shown by testimony. The committee forbear to adduce arguments to show that votes fairly and hon- estly given should not be set aside for the omission or mistake of a returning officer.
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