What is the House procedure for resolving contested elections, like the one between Robert
Dornan (R-CA) and Rep. Loretta Sanchez (D-CA) of the 46th district of California, which
just ended with Sanchez being permanently seated? Johnson City, NY - 5/3/00
Article I, section 5 of the Constitution states that each House shall be the judge of its own
elections, returns, and Member qualifications. Section 4 further permits Congress to make laws
to alter state regulations concerning elections. This means the House or Senate may act as they
wish regarding a contested election, even if contrary to a decision of a state legislature or court,
or to an agreement reached between the contestants. Court cases, most recently in 1972, have
held that House decisions of contested elections, even if perceived as political in nature, cannot
be brought to the courts on appeal. The Supreme Court has declined jurisdiction over contested
elections. As a result, the House has the final word on seating a Member.
All matters involving contested elections are initially handled by the Committee on House Administration, which is given jurisdiction of such matters by the rules of the House. Its guidance is
the Federal Contested Election Act (P.L. 91-138, 83 Stat. 284), enacted in 1969. That law
explains the process, starting with the filing of a notice of contest by the loser of the election, the
taking of testimony from witnesses, and the holding of hearings on the depositions and papers
filed with the Clerk of the House related to the dispute. The statute also places the burden of
proof on the challenger to show that sufficient evidence exists to change the outcome of the
election results.
The process of examining a contested election can also be initiated by any Member on the floor
who wishes to challenge the legitimacy of another Member's taking of the oath of office. The challenge, in
the form of a resolution, is then referred to the Committee on House Administration for review.
Individual electors from the state in question may also petition the House for a review of the
election.
After the House Administration Committee completes its examination of the election, it issues a report
to the full House, in the form of a resolution with recommendations, which the House then
adopts or rejects by a simple majority vote. According to the precedents of the House, the
resolution can:
dismiss the challenge
declare which candidate is entitled to the seat
assert that no one should be seated pending the completion of
an investigation
call for a new election to be held
refute the challenger as not qualified to contest the election
provide reimbursement for the contestants from the contingency fund of the House for
costs incurred in the contested election process.
Recounts of vote results in a contested election are undertaken if the election loser can show
he/she has exhausted all appeals in the state courts under state law. However, the House has in
the past, declined to order a recount if the state supreme court has already conducted one.
The resolution containing the Committee's recommendations is debated in the House. Amending
is possible, but difficult. The resolution is subject to a motion to recommit (sending it back to
committee) with instructions from the House to take further action. Adoption or defeat is by a
majority vote of those present.
Prior to the Dornan v. Sanchez contest, the House last considered a contested election in 1985:
McIntyre v. McCloskey in the 8th district of Indiana. While the State of Indiana certified the
Republican, McIntyre, as the winner of the election, the House voted to seat the Democratic
challenger, Frank McCloskey. A House-ordered recount gave McCloskey a 4-vote margin of victory.
