Procedures for Contested Election Cases in the House of Representatives

Jack Maskell
Legislative Attorney

L. Paige Whitaker
Legislative Attorney

Under the U.S. Constitution, each House of Congress has the express authority to be the judge of the “elections and returns” of its own Members (Article I, Section 5, clause 1). Although initial challenges and recounts for House elections are conducted at the state level under the state’s authority to administer federal elections (Article I, Section 4, cl. 1), continuing contests may be presented to the House, which may make a conclusive determination of a claim to the seat.

In modern practice, the primary way for an election challenge to be heard by the House is by a candidate-initiated contest under the Federal Contested Elections Act, (FCEA, codified at 2 U.S.C. §§381-396). Under the FCEA, the candidate challenging an election (the “contestant”), must file a notice of an intention to contest within 30 days of state certification of the election results, stating “with particularity” the grounds for contesting the election. The contestee then has 30 days after service of the notice to answer, admitting or denying the allegations, and setting forth any affirmative defenses. Before answering a notice, the contestee may make a motion to the Committee on House Administration for a “more definite statement,” pointing out the “defects” and the “details desired.” If this motion is granted by the committee, the contestant would have 10 days to comply. Under the FCEA, the “burden of proof” is on the contestant, who must overcome the presumption of the regularity of an election, and its results, evidenced by the certificate of election presented by the contestee. The FCEA’s contested election procedure is directed at the question of who won the most votes and is “duly elected.” It is not the proper vehicle to challenge the qualifications or eligibility of a Member-elect. Indeed, an election contest brought under the FCEA challenging a Member-elect’s qualifications would likely be subject to a motion to dismiss based on the failure of the contestant “to state grounds sufficient to change result of election,” or a failure of contestant “to claim a right to contestee’s seat.” In the FCEA’s adversarial proceeding, either party may take sworn depositions, seek subpoenas for the attendance of witnesses and production of documents, and file briefs to include any material they wish to put on the record. The FCEA specifies that the actual election contest “case” is heard by the committee, “on the papers, depositions and exhibits” filed by the parties, which “shall constitute the record of the case.”

On less frequent occasions, the House may refer the question of the right to a House seat to the committee for it to investigate and report to the full House for disposition. In lieu of a record created by opposing parties, the committee may conduct its own investigation, take depositions, and issue subpoenas for witnesses and documents. Jurisdiction may be obtained in this manner from a challenge to the taking of the oath of office by a Member-elect, when the question of the final right to the seat is referred to the committee. In the past, committees investigating such questions have employed several investigative procedures, including impounding election records and ballots, conducting a recount, performing a physical examination of disputed ballots and registration documents, and interviewing and examining various election personnel in the state and locality.

Under either procedure, the committee will generally issue a report and file a resolution concerning the disposition of the case, to be approved by the full House. Specifically, the committee may recommend—and the House may approve by a simple majority vote—to affirm the right of the contestee to the seat, to seat the contestant, or to find that neither is entitled to be seated and declare a vacancy. For an overview of the 107 election contests considered by the House since 1933, see CRS Report 98-194, Contested Election Cases in the House of Representatives: 1933 to 2009, by L. Paige Whitaker.


Date of Report: December 23, 2011
Number of Pages: 23
Order Number: RL33780
Price: $29.95

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