CATALOGED

91st

COMMITTEE PRINT

1st Session

COMMITTEE ON HOUSE ADMINISTRATION

ANALYSIS OF H.R. 14195, A BILL TO REVISE THE
LAW GOVERNING CONTESTS OF ELECTIONS OF
MEMBERS OF THE HOUSE OF REPRESENTA-

TIVES, AND FOR OTHER PURPOSES

ANALYSIS OF H.R. 14195, A BILL TO REVISE THE LAW GOVERNING CONTESTS OF ELECTIONS OF MEMBERS OF THE HOUSE OF REPRESENTATIVES, AND FOR OTHER PURPOSES

THE NEED FOR UPDATING THE EXISTING LAW

That the contested election law is a relic of a bygone era is evident from the fact that the present law, passed in 1851, is substantially the same as the contested election law enacted in 1798 by the Fifth Congress which, by its own terms, expired at the end of the Sixth Congress. first session.1 Since its enactment in 1851, minor amendments have been made in 1860, 1873, and 1879. An attempt to make substantial improvements in the procedures for contested elections failed in the 67th Congress when the bill passed the House on October 17, 1921, but died in the Senate.

The law prescribes antiquated and cumbersome procedures which are unsuitable for the changed conditions of our time. The result is confusion on the part of parties to a contested election case as to the proper method of proceeding and an administrative headache for the Elections Subcommittee and the Clerk of the House, which tends to inhibit expeditious, efficient consideration and disposition of the cases. Illustrative of this is the case of Lowe v. Thompson 2 where contestee failed to answer the notice of contest, leaving contestant unsure what his next step should be. There being no provision for the running of contestant's time to take testimony in case of his opponent's default, Lowe was compelled to seek a ruling of the subcommittee as to whether he was entitled to the seat by default and when he could commence taking testimony. The chairman and committee staff were bombarded by letters, telegrams, and phone calls asking for advice. This could have been avoided had the law explicitly provided that the burden of proof remains on contestant, even if contestee defaults, and that the contestant's time to take testimony begins with the service of answer by contestee or, in default of answer, with the expiration of the 30-day period within which to answer. Another example of the cumbersome nature of the existing law is its failure to afford any means of challenging the sufficiency of the notice of contest by a motion in the nature of demurrer. Although such motions have been made in previous cases, it is felt that greater use of them would occur if the law clearly provided for them. A demurrer attacking the legal sufficiency of the notice, if sustained, disposes of the case without expensive and time-consuming taking of testimony and without the accumulation of a lengthy record for consideration by the subcommittee. And, insofar as the

1 Act of Jan. 23, 1798, Fifth Cong., second sess., "An Act to prescribe the mode of taking evidence in cases of contested elections for Members of the House of Representatives of the United States and to compel the attendance of witnesses," vol. 1, Stat. at L, p. 537; debate is reported in the Annals of Congress, vol. 9, app., pp. 3704–3707.

H. Res. 541, H. Rept. 365, 90th Cong. (Fifth District of Georgia.)

Clerk of the House is concerned, the present law imposes upon him an onerous and probably distasteful duty of deciding what portions of the testimony shall be printed if the parties are unable to agree. Since the clerk may not be a lawyer and is probably unfamiliar with the issues and the evidence in the case, it is difficult for him to make this determination.

The need for improving the procedures governing contested election cases has been widely recognized on both sides of the aisle. In its report in the Mississippi election contests,3 the committee recommended “a thorough review of such procedures" and "improving and clarifying them so as to deal more expeditiously with such cases in the future." Earlier, during the debate in the Ottinger case, Mr. Ford, the minority leader, urged the House to "update these laws to take into consideration conditions that have developed over the years in cases coming before the House such as those that have been discussed here today. I would strongly urge such action be taken by the House and by the other body during this session of Congress."

3 H. Rept. 1008, accompanying H. Res. 585, which dismissed the five Mississippi election contests. + Congressional Record, 89th Cong., Jan. 19, 1965, p. 932, daily edition.

SECTION 1. This Act may be cited as the "Federal Contested Election Act".

DEFINITIONS

SEC. 2. For purposes of this Act-
(a) The term "election" means an official general or
special election to choose a Representative in or Resident
Commissioner to the Congress of the United States, but
does not include a primary election, or a caucus or con-
vention of a political party.

(b) The term "candidate" means an individual (1)
whose name is printed on the official ballot for election to
the House of Representatives of the United States or (2)
notwithstanding his name is not printed on such ballot,
who seeks election to the House of Representatives by
write-in votes, provided that he is qualified for such office
and that, under the law of the State in which the congres-
sional district is located, write-in voting for such office
is permitted and he is eligible to receive write-in votes in
such election.

(c) the term "contestant" means an individual who con-
tests the election of a Member of the House of Representa-
tives of the United States under this Act.

(d) The term "contestee" means a Member of the House
of Representatives of the United States whose election is
contested under this Act.

EXPLANATION

Only official general or special elections to House are
covered.

"Candidate" embraces those persons whose names are on
official ballot or who are qualified write-in candidates.

"Contestant" is the person initiating and prosecuting the

contest.

"Contestee" is the Member or Member-elect whose election is contested.