CRS-9 would invalidate an election only if there is a lack of authority in the election board, fraud in conducting an election or such irregularities or 39/ misconduct as would render the result uncertain. The House in the elec tion contest case of Carney v. Smith in the Sixty-third Congress (1913– 1915) considered whether to invalidate an election and to declare a House 40/ seat vacant and enunciated the following principles to be considered be fore taking such an extraodinary action: We do not believe that a committee of this House, looking for the truth to determine who in fact was elected by the voters, should, on account of this irregularity, disfranchise the electors of this township. No question is made but that the ballots cast in this precinct were cast by legal voters and in good faith. Nor is it claimed that the contestee received a single vote more than was intended to be cast for him, or that the contestant lost a single vote. We do not believe that the facts warrant the rejection of the entire poll of this township, nor does the law as practiced in almost every jurisdictíou warrant such a result. McCreary on Elections, section 488, says: "The power to reject an entire poll is certainly a dangerous power, and, though it belongs to whatever tribunal has jurisdiction to pass upon the merits of a contested-election case, it should be exercised only in an extreme case; that is to say, where it is impossible to ascertain with reasonable certainty the true vote." Paine on Elections, section 497, saya: ''Ignorance, inadvertence, mistake, or even intentional wrong on the part of the local utficers should not be permitted to disfranchise a district." Section 498 says: "The rules prescribed by the law for conducting an election are designed chiefly to afford an opportunity for the free and fair exercise of the elective franchise, to prevent illegal votes, and to ascertain with certainty the result. "The departure from the mode prescribed will not vitiate an election, if the irregularity does not deprive any legal voter of his vote, or admit an illegal vote, or cast uncertainty on the result and has not been occasioned by the agency of a party seeking to derive a benefit from them. "Power to throw out the vote of an entire precinct should be exercised only under circum. stances which demonstrate beyond a reasonable doubt that there has been such a disregard of law or such fraud that it is impossible to determine what votes were lawful or unlawful, or to arrive at any result whatever, or whether a great body of voters have been prevented from exercising their rights by violence or intimidation. (Case of Daley v. Petroff, 10 Philadelphia Rep., 359.) "There is nothing which will justify the striking out of an entire division but an inability to decipher the returns or a showing that not a single legal vote was polled or that no election was legally held. (In Chadwick v. Melvin, Bright's Election cases, 489.) "Nothing short of an impossibility of ascertaining for whom the majority of votes were given ought to vacate an election, especially if by such decision the people must, on account of their distant and dispersed situation, necessarily go unrepresented for a long period of time. (McCreary on Elections, 189.) "If there has been a fair vote and an honest count, the election is not to be declared void because the force conducting it were not duly chosen or sworn or qualified." Thomas the Dunkin Thomas M. Durbin 39/ Reid v. Julian, H. Rep. No. 116, 41st Cong. (1980); 2 Hinds' Precedents of the House of Representative, (Wash., U.S. Govt. Printing Office, 1907) $881, p. 84. See also, Beakes v. Bacon, Sixty-fifth Congress (1971), 6 Cannon's Precedents of the House of Representatives, Wash., U.S. Govt. Printing Office, 1935), § 144, p. 263. 40/ The House refused to invalidate the election and declare the House seat vacant in Carney v. Smith, 6 Cannon's Precedents, supra, § 92 at p. 149. REMEDIES AVAILABLE TO THE HOUSE OF REPRESENTATIVES AFTER AN INVESTIGATION OF A CONTESTED ELECTION CASE The first part of this report is the introduction; which asserts that under Article I, section 5, clause 1 of the Constitution, the House is the sole and exclusive judge of its election contests. The Supreme Court decisions in Roudebush v. Hartke, 405 U.S. 15 (1972) and Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929) have reasserted this exclusive jurisdiction of each House of Congress. The three basic remedies of the House are discussed: (1) a dismissal of the election contest suit; (2) the seating of a claimant to a House seat or a reaffirmation of a prior seating on the ground that the election returns support a particular claimant; or (3) a rejection of the returns of the election and a declaration that the seat is vacant. This part notes that the recommendation by the House to set aside an election and declare a seat vacant is an extraordinary remedy which should only be used when the results of a contested election are impossible to determine. The second part analyzes various House precedents in which an election was invalidated and a seat was declared vacant. The following House contested elec tion cases declaring House seats vacant are analyzed. (1) McFarland v. Culpepper, Tenth Congress (2) Letcher v. Moore, Twenty-third Congress (1833-1835), a Kentucky election contest case; (3) Reeder v. Whitfield, Thirty-fourth Congress (4) Bowen v. DeLarge, Forty-second Congress (5) Buttz v. Mackey, Forty-fourth Congress (6) Clayton v. Breckinridge, Fifty-first Congress (1889-1891), an Arkansas election contest case; (7) Benoit v. Boatner, Fifty-fourth Congress (8) Johnston v. Stokes, Fifty-fourth Congress (10) McLean v. Bowman, Sixty-second Congress (11) Sanders v. Kemp, a Seventy-third Congress (1933-1934), a Louisiana election contest case. Part three is the conclusion; it reaffirms the fact that the House has generally been reluctant to declare a seat vacant and has preferred to correct the returns and seat a claimant when this has been possible. Two Senate election contest cases are discussed in which the Senate declared a seat vacant: (1) The Senate election case of William Lorimer of Illinois, Sixty-first Congress (1909-1910) and (2) the 1975 Senate election contest case involving a New Hampshire Senate seat in the Ninety-fourth Congress. Part three also notes that state court decisions have generally held that irregularities and errors in an election will not necessarily invalidate an election when they have not affected it or changed its result or brought it into doubt. And this part lists certain principles which were enunciated in the election contest case of Carney v. Smith in the Sixty-third Congress (1913-1915) which should be considered by the House before it would declare a seat vacant. REMEDIES AVAILABLE TO THE HOUSE OF REPRESENTATIVES I. INTRODUCTION Article I, section 5, clause 1 of the Constitution makes each house of Congress the final judge of the "elections, returns and qualifications" of its Members. Each House is the sole and supreme judge of its election contests, The United States Supreme Court in and its determinations are conclusive. 2/ 1/ Roude bush v. Hartke concerning a 1972 Indiana senatorial election contest case held that Article I, section 5, clause 1 making each House the judge of the elections and returns of its Members did not prohibit a recount by the State. According to the Court, such a recount by the State, would not prevent or impair the ability of the Senate to make its own investigation and arrive at its 3/ own conclusion which would be controlling. In the 1929 Supreme Court decision of Barry v. United States ex rel. 4/ Cunningham involving the investigation of a Pennsylvania Senate election con test case, it was held that, when a Member-elect has a state certification of election and presents himself to the Senate claiming the right of membership, the Senate has the exclusive jurisdiction and power to adjudicate such right 1/ Bernard Schwartz, A Commentary On The Constitution Of the United States, Pt. I (The MacMillan Company, New York, 1963) p. 102. 2/ 402 U.S. 15 (1972). 3/ Id., 25-26. 4/ 279 U.S. 597 (1929). CRS-2 under Article I, section 5, clause 1 of the Constitution. 5/ And whether the Senate should accept such credentials of the Member-elect, should administer the oath of office to the Member-elect, and should grant the full right of 6/ membership are matters within the sole discretion of the Senate. And any refusal to seat a certified Member-elect does not deprive the State of its "equal suffrage in the Senate" as guaranteed by Article V of the Constitution. Arguably, the House has such similar power as the Senate in contested election 7/ cases under Article I, section 5, clause 1 of the Constitution." After an investigation by the House of a contested election case, the House would have such remedies as: (1) a dismissal of the case upon a motion to dismiss usually made by the contestee; (2) a seating of a certain candidate or a reaffirmation of a prior seating of a Member-elect on the ground that an examination of the election returns supports the finding that a certain candidate won the election; or (3) a rejection of the returns of the election and declaration that the seat is vacant. The remedy of a dismissal of a contested election case may be made by a motion of the contestee which would be based on the following defenses: 8/ 2 U.S.C. § 383(b)(3). (Federal Contested Elections Act of 1969, 2 U.S.C. S$ 381 to 396). |