1981 to December 31

do hereby declare and
from

affirm under penalty of perjury, that I have served January 1, 1984, as the clerk of the circuit court of the County of Vanderburgh Indiana, and that with respect to receipt, handling, processing, storage, security and access relating to any and all absent voter ballot envelopes containing ballots received by the county in conjunction with the general election held on November 6, 1984, the following is true and correct with respect to my term of service:

(Instructions: Place a check mark in the box which most
accurately characterizes each of the statements below.)

Under penalty of perjury, I do hereby declare and affirm that the foregoing is true and correct.

(name)

Clerk of the Vanderburgh Co., Circuit and Superor

Dated this 12__day of April, 1985.

(title)

The above appeared before me and signed and swore that the above statement was true and correct.

Courts

All absentee voter ballots which were properly notorized initialed and signed were kept secure and sent to the respective polls on Election Day.

All absent voter ballots which were invalid under Indiana Law were not counted, nor kept in a secure place during, before, or after Election nor, were they sent to the respective polls.

Access to invalid ballets has not been limited to the
Election Officials.

APPENDIX B

EXECUTIVE SUMMARY

The first part of this report examines the background of the power of each House to judge the elections, returns, and qualifications of its Members under Article I, section 5 of the Constitution. The report notes that, when each House judges its elections, it acts as a judicial tribunal and has the authority to do such things inter alia as compel the attendance of witnesses and is in no way inferior to other courts of justice in the matter of congressional contested elections. Thus, the power of each respective House regarding the elections of its Members is supreme.

The second part analyzes certain House contested election cases and House precedents to determine the effect of state laws and state court decisions on actions by the Committee on House Administration. It is noted that generally the Committee will follow state election laws and state court decisions in resolving House contested election cases but is not bound to do so as the final judge of such elections. The report notes that an examination of a number of House contested election cases going back to the First Congress reveals that the House has broad authority in this area to follow state laws and state court decisions or to make its judgment independent of them.

The third part is the conclusion which asserts that, while the House or the Committee generally would follow state laws and state court decisions in determining House contested election cases, it is not bound to do so and has not done so in certain election contest cases regarding the validity of ballots in which the intentions of the voters had to be determined. The report concludes that the power of the House is absolute in judging the elections and returns of its Members under Article I, section 5 of the Constitution. The United States Supreme Court decision of Roudebush v. Hartke, 405 U.S. 15 (1922), is noted for its holding that each House of Congress can make an independent final judgment of an election contest case irregardless of state election laws and state court decisions on the matter.

THE APPLICATION OF STATE LAWS AND STATE COURT DECISIONS IN HOUSE CONTESTED ELECTION CASES

I. BACKGROUND

Under Article I, section 5 of the Constitution, each House of Congress is the judge of the "elections, returns and qualifications" of its Members. Even though the House of Representatives is the final judge of the elections of its Members when controversies concerning such elections arise, the states have significant power in the preliminary proceedings of election contest cases under Article I, section 4 of the Constitution. Article I, section 4 provides in pertinent part: "The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Thus, the states have a general authority over the manner in which congressional elections are held, but state power over congressional elections is subject to the overriding power of Congress to enact federal election laws for Congress. Congress is vested with the paramount authority to regulate all aspects of congressional elections under Article I, section 4.1

When each House judges its elections, it acts as a judicial tribunal and has the authority to do such things inter alia as compel the attendance of witnesses and is in no way inferior to other courts of justice and the powers they exercise.2 Each

1 Bernard Schwartz, "A Commentary On The Constitution Of The United States," Pt. I, The MacMillan Company, New York, 1963, p. 100.

2 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616 (1929).

(613)

House is the sole judge of election disputes, and its determinations are conclusive. Thus, the power of each respective House regarding the elections of its Members is supreme.3

In the 1972 Supreme Court decision of Roudebush v. Hartke involving an Indiana election contest case of a United States Senate seat, it was held that Article I, section 5 making each House the judge of elections did not prohibit a recount by the State. Moreover, such a recount by the State would not prevent or impair the ability of the United States Senate from making an independent evaluation and arriving at an independent final judgment.5 Consequently, a recount procedure by a State to verify the accuracy of election results pursuant to the broad powers delegated to the states to regulate elections under Article I, section 4 would only usurp the Senate's role in judging elections and returns if it were to frustrate the Senate's ability to make an independent final judgment. But this is not the case, since a recount by a State does not prevent the Senate from making an independent evaluation any more than an initial count does. Both the House and the Senate under Article I, section 5 of the Constitution are the final judges of the elections and returns of its Members even though various state election laws and court decisions are involved.

II. EFFECT OF STATE LAWS AND STATE COURT DECISIONS ON ACTIONS BY THE COMMITTEE ON HOUSE ADMINISTRATION

House contested election cases are first heard by the Committee on House Administration (hereinafter referred to as Committee), and then the whole House disposes of the case by privileged resolution. When the Committee investigates an election contest to determine the outcome and winner of such election, what effect should the Committee give to state elections laws? Generally, the Committee will follow state laws and state court decisions in resolving House contested election cases, but is not bound to do so as the final judge of such elections. Often the Committee will rely on certain state election laws and procedures and state court decisions especially in regard to a recount of the votes. In order to obtain an order from the House for a recount of the votes, remedies for a recount under state law should be exhausted by the contestant. However, the House and the Committee are not bound by state election laws and state court decisions in determining the validity of questionable ballots especially when the intentions of the voters are clearly contrary to state court decisions and the technical requirements of state election laws.10 The power of the House and the Committee under Article I, section 5 to judge the elections and returns is infinite and is in no way circumscribed by either state election laws or state court decisions.11

12

In the 1961 House contested election case of Roush v. Chambers, 12 the Committee noted that the House of Representatives on several occasions held that certain state statutory requirements relating to voting procedures such as marking ballots were "directory" rather than “mandatory". For example, in 1890 in the election contest Goodich v. Bullock, 13 ballots were accepted in any colored ink especially in cases where black ink as required by the Florida state election law was not available to the voter. And in an 1896 House contested election's case in Denny, J. v. Owens, 14 the House Election Committee counted ballots that were marked with a lead pencil instead of a stencil as mandated by Kentucky election laws.

An examination of a number of House contested election cases going back to the First Congress reveals that the House has broad authority in this area to follow

3 Bernard Schwartz, A Commentary

Supp. 933, 934-935 (S.D. Ill. 1934).

4 405 U.S. at (1972).

5 Id., 25-26.

6 Id., 25.

7 See generally, Deschler, Brown, "Procedure In The U.S. House of Representatives," Ch. 9, "Election Contests and Disputes," §§ 1-4, pp. 73-78 (1982).

8 Lewis Deschler, "Deschlers' Precedents of the United States House of Representatives," § 38.4, p. 436.

9 Swanson v. Harrington, H. Rep. No. 1722, 76th Cong. 3d Sess. (1940). Compare Carter v. LeCompte, H. Rep. No. 1626, 85th Cong., 2d Sess. (1958).

10 See generally Lewis Deschler, "Precedents," supra, §§ 38.4 and 38.5.

11 Brown v. Hicks, H. Rept. No. 1325, Sixty-fourth Cong., 2d Sess. (1917); and see 6 “Cannon's Precedents of the House of Representatives," § 143, p. 260 (1935).

H. Rep. No. 513, 87th Cong., 1st Sess., pp. 25–27 (1961).

H. Rep. No. 2899, 51st Cong., 1st Sess. (1890); 2 Hinds' "Precedents of the House of Representatives," pp. 503-506 (1907).

H. Rep. No. 1877, 54th Cong., 1st Sess.(1896); 2 Hinds' "Precedents," supra, §§ 1087-1088, pp. 624-626 (1907).

state laws and to accept the construction of state laws by state courts or to disregard them and make its own findings. In the Tennessee Election case of 1870, the Committee on Elections asserted that it was a well established rule that, where state authorities had given a certain construction to their own constitution or statutes it would be followed by the House and other federal authorities so that there would be a harmonious relationship between state and federal governments. 15 However, an attorney general opinion given to a governor of a State will not necessarily be binding on or be a rule of guidance for the House in the exercise of its judicial functions in a contested election case according to an 1870 case involving a Virginia district case. 16 In an 1880 case in the 47th Congress involving A Mississippi election contest case, the House Committee on Elections asserted that as a general rule the House will follow the interpretation or construction of a state law regulating a congressional election by the supreme court of the state especially in circumstances where decisions have been uniform in such a way as to become the fixed and settled law of the state.17 But a single state supreme court decision regarding the validity of certain ballots made after the election in question is not binding on the House and may be disregarded. 18

In the 1891 House contested election case of Noyes v. Rockwell involving a New York election contest, the House Committee on Elections found that the decision of a supreme court of the state regarding the construction of a statute concerning the counting and recounting of ballots should be binding on the Committee. 19 In two House contested election cases in the Fifty-third Congress (1893–1995), Thrasher v. Enloe involving a Tennessee election contest case and Belknap v. Richardson involving a Michigan contested election case, the Committee on Elections followed the decisions of the state supreme courts regarding the interpretation state constitutional and statutory provisions concerning certain voter qualifications.20

In the election contest case of Patterson v. Carmack in the Fifty-fifth Congress (1897-1899), the Committee on Election reiterated an important principle in noting that state court decisions are only to be adopted by the Committee insofar as they commend themselves by the intrinsic force of their reasoning. But such rulings of state courts are less binding on the House then its own precedents since House precedents are expressions of the law which control the House in the exercise of its judicial power as a court of competent and exclusive jurisdiction in judging the elections and returns of its Members.21

In the 1902 House election contest case of Moss v. Rhea in the Fifty-seventh Congress involving a Kentucky seat, the Committee on Elections asserted that, where the intent of the voter was not in doubt, the Committee would follow the decisions of the Kentucky courts and decline to reject ballots because they were not strictly marked as required by state election laws. 22 The House accepted as valid and counted ballots which had not been properly endorsed by election clerks according to Kentucky election statutes. 23

The House in the 1917 election contest case of Brown v. Hicks asserted that the authority of the House is infinite and is in no way circumscribed by state statutes or the decisions of state courts. 24 The House has often been willing to abide by the constructions of state statutes given by state courts, but state court decisions will not necessarily be conclusive on the House but may only guide the House in its consideration of a contested election case. 25

15 Chester H. Rowell, "A Historical And Legal Digest of All The Contested Election Cases In The House of Representatives Of The United States From The first To The Fifty-Sixth Congress, 1789-1901," Wash. U.S. Gov't Printing Ofc. (1901), pp. 261-263. (H. Doc. No. 510, 56th Cong., 2d Sess. (1901)).

16 Id., p. 843; see McKenzie v. Braxton, 42d Cong. (1870), id., pp. 265–266.

17 Id., pp. 375–377.

18 Id.,
p. 376.

19 Id., pp. 475-476.

20 Id., pp. 487-489; pp. 494-496.

21 Id., pp. 574-576. See also 2 Hinds' "Precedents," supra, § 1105 pp. 659-661 (1907).

22 H. Rep. No. 625, 57th Cong., 1st Sess. (1902); 2 Hinds' "Precedents," supra, §§ 1120-1121, pp. 694-698 (1907).

23 Ibid. The acts of election officials are merely directory and not mandatory; thus, voters should not be disfranchised for failure of these officials to perform their duties. See George W. McCrary, “A Treatise On The Law of Elections," §§ 723, 724, pp. 522-523 (1897).

24 H. Rep. No. 1326, Sixty-fourth Cong., 2d Sess.; 2 Hinds' "Precedents," supra, § 143, pp. 260

262.

25 Id., 2 Hinds' "Precedents" at § 143, p. 261.