[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 23. Election of Members]
[From the U.S. Government Printing Office, www.gpo.gov]
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CHAPTER 23 - ELECTION OF MEMBERS
HOUSE PRACTICE
Sec. 1. In General
Sec. 2. Campaign Practices
Sec. 3. Certificates of Election
Sec. 4. Resignations; Deaths; Filling Vacancies
Research References
U.S. Const. art. I, Sec. 5, cl. 1
1 Hinds Sec. Sec. 277-633
6 Cannon Sec. Sec. 38-89
Deschler Ch 8
Sec. 1 . In General
Generally
Although Congress has enacted extensive legislation to protect the
right to vote and to secure the process against fraud, bribery, and
illegal conduct, the actual mechanism for conducting and holding
congressional elections has been left largely to the States. Deschler
Ch 8 Sec. Sec. 5, 7. However, under article I, section 5, clause 1 of
the Constitution, the ultimate validity of elections rests on
determinations by the House and Senate as final judges of the
elections and returns of their respective Members. Deschler Ch 8
Sec. 5. Therefore, where the conduct of election officials or of
candidates and their agents constitutes fraud or illegal control of
election machinery, the House or Senate may void an election and
refuse to administer the oath to a Member-elect. Deschler Ch 8 Sec. 7;
see Deschler Ch 8 for complete treatment of elections and election
campaigns.
Apportionment and Reapportionment
Since the admission of Alaska and Hawaii to statehood, the total
membership of the House has remained fixed by statute at 435 seats.
Manual Sec. 227. By law, these 435 seats are automatically apportioned
among the States according to each decennial census. 2 USC Sec. 2a.
Under this law, a statistical model known as the ``method of equal
proportions'' is used to determine the number of Representatives to
which each State is entitled. Although other methods for apportioning
House seats may be permitted, the equal proportions method chosen by
Congress has been
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upheld under the Constitution and was plainly intended to reach as
close as practicable the goal of ``one person, one vote.''
Massachusetts v. Mosbacher, 785 F. Supp. 230 (D. Mass. 1992), rev'd on
other grounds Franklin v. Massachusetts, 505 U.S. 788 (1992). The
courts also have recently upheld under Federal law and the
Constitution a counting methodology used by the Census Bureau in a
decennial census. This method, known as ``imputation,'' was held to be
different than ``sampling,'' a method prohibited under section 195 of
title 13, United States Code. Utah v. Evans, 536 U.S. 452 (2002). The
method of apportioning the seats in the House is vested exclusively in
Congress, and neither States nor courts may direct greater or lesser
representation than that allocated by statute. Deschler Ch 8 Sec. 1.
The States create their own congressional districts, which must be
redrawn after reapportionment so that each district is as equally
populated as practicable. Manual Sec. 229.
Section 2a of title 2, United States Code, mandates the manner in
which a State must conduct an election after any apportionment but
before the State is redistricted. Section 2a addresses an election
where the number of Representatives has not changed, has increased, or
has decreased. The authority under section 2a(c) of title 2 for a
State to retain an at-large seat pending its redistricting should be
read in light of section 2c of title 2, which requires all States
entitled to more than one seat to elect representatives only from
single-Member districts. Manual Sec. 227.
Reapportionment proposals have been considered in the House, but
have no privileged status under the Constitution and cannot interrupt
the regular proceedings of the House. Deschler Ch 8 Sec. 2.
Reapportionment legislation also has been considered in the Committee
of the Whole. Deschler Ch 8 Sec. 2.5. Under rule X clause 1(k),
proposals relating to apportionment are within the jurisdiction of the
Committee on the Judiciary.
Sec. 2 . Campaign Practices
The power of Congress to regulate the election process extends to
the regulation of campaign practices. Deschler Ch 8 Sec. 10. The
Federal Election Campaign Act established a new and comprehensive code
for campaign practices and expenditures, and contains provisions for
investigations and enforcement. 2 USC Sec. 431.
The Federal Election Commission is the agency empowered with
primary jurisdiction over the administration, interpretation, and
civil enforcement of the Federal Election Campaign Act. Federal
Election Comm'n v. American Intern. Demographic Services, Inc., 629 F.
Supp. 317 (E.D. Va. 1986). However, the House itself has the power to
judge elections and to
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determine whether a candidate was improperly elected to a seat. If
violations of the election campaign statutes are so extensive as to
render an election void, the House may deny the right to a seat.
Deschler Ch 8 Sec. 12.
Under rule X clause 1(i), the Committee on House Administration
has jurisdiction over measures relating to the election of the
President, Vice President, or Members of Congress and over measures
relating to the raising, reporting, or use of campaign contributions
for House candidates. Investigations of specific elections or election
practices usually are undertaken by that committee. See, e.g., 105-2,
H. Res. 355, Feb. 12, 1998, p 453. Investigations of Members'
elections may be conducted under the statutory election-contest
procedures or offered on the floor of the House as questions of
privilege. Manual Sec. 701; see Election Contests and Disputes.
Formerly, investigations were undertaken by select committees created
to review election campaigns and proceedings, which were created by
privileged resolution reported from the Committee on Rules. Deschler
Ch 15 Sec. 1.3. Under the modern practice, investigations are
undertaken by the Committee on House Administration.
A Member's resignation during an investigation effectively
terminates the investigation, because the Committee on House
Administration has no further jurisdiction in the matter thereafter.
95-1, May 4, 1977, p 13391.
Under rule XIII clause 5, a resolution reported from the Committee
on House Administration relative to the right of a Member to his seat
is considered as privileged. Deschler Ch 8 Sec. 13.5.
Sec. 3 . Certificates of Election
Certificates of election are issued by each State after
congressional elections have been conducted and the results tabulated.
The certificates, also termed ``credentials,'' are sent to the Clerk
of the House for use in composing the Clerk's roll. Although the
certificate is not essential to the administration of the oath, any
Member or Member-elect has the right to object thereto, by delivering
a challenge either to the validity of the election or to the validity
of the certificate itself. Deschler Ch 8 Sec. 15. For a discussion of
challenging the administration of the oath, see Oaths.
The House (and not the Speaker or other official) determines
whether a Member may be sworn in after an election certificate has
been challenged. If a challenge has been directed to a mere
irregularity in the form of the certificate, the House will ordinarily
seat the Member-elect and declare him finally entitled to the seat.
Deschler Ch 8 Sec. 17.1. However, if a certificate is challenged
through an election contest or by an allegation of election
irregularities, the House may authorize the Member-elect to be sworn
but
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provide that his final right to the seat be referred to committee.
That procedure often is followed where a certificate is on file in
order not to deprive a State of representation in the House because of
protracted proceedings. Deschler Ch 8 Sec. 16.4. Another procedural
option that may be pursued by the House is to declare that neither
candidate be sworn and that the question of prima facie and final
right to the seat be referred to committee. Manual Sec. 204.
A circumstance which may require the nullification of a
certificate is the intervening death or disappearance of the Member-
elect named therein. Deschler Ch 2 Sec. Sec. 4.8, 4.9.
The House does not always require a certificate in seating a
Member-elect. If he appears without a certificate but his election is
uncontested and unquestioned, the House may authorize him to be sworn
by unanimous consent. Manual Sec. 204. A photographic copy of the
original certificate has been accepted without invoking the unanimous-
consent procedure. 106-1, June 8, 1999, p 3773. In some cases where a
certificate is delayed, the State represented will deliver informal
communications to the House attesting to the validity of the election
of the Member-elect. The House may accept such communications by
unanimous consent in the absence of a certificate. Deschler Ch 2
Sec. 3.3. Even where a Member-elect arrives without a certificate and
his election is disputed, the House may by resolution authorize him to
be sworn. Deschler Ch 8 Sec. 17.2.
Sec. 4 . Resignations; Deaths; Filling Vacancies
A Member properly submits his resignation to an official
designated by State law and simply informs the House of his doing so,
the latter communication being satisfactory evidence of the
resignation. Manual Sec. 19; 1 Hinds Sec. 567.
Where a vacancy arises in the House by death, resignation,
declination, or action of the House, the vacancy must be officially
declared in order that a special election may be held. Usually, the
State executive declares the vacancy to exist, particularly in cases
of death, declination, or resignation. Deschler Ch 8 Sec. 9. The State
executive then issues a writ of election to fill the vacancy. U.S.
Const. art. I, Sec. 2, cl. 4. If a Governor does not recognize the
existence of a vacancy, such as in the case of a presumed death not
susceptible of proof, the House itself may initiate the action to have
the seat declared vacant. Deschler Ch 8 Sec. 9.5. Such a declaration
is proper where independent House action has created a vacancy by
expulsion or exclusion of a Member. Deschler Ch 8 Sec. 9. In such
cases, the House, by privileged resolution, directs the Speaker to
notify the State executive. Manual Sec. 22.
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The State executive also is notified where the Member purports to
resign directly to the Speaker, rather than to the Governor of his
State as is customary.
Under rule XX clause 5, in the case of the death of a Member, the
Speaker may lay before the House such documentation from Federal,
State, or local officials as he deems pertinent.
A resolution declaring a seat vacant is used where a Member-elect
is unable to take the oath or to resign due to an incapacitating
illness. Manual Sec. 22. In one instance, a letter to the Speaker from
the attending physician was inserted in the Congressional Record to
document the physical condition of the Member-elect. The letter stated
that she was in a coma and would be unable to take the oath. Manual
Sec. 205. The House, by declaring the seat vacant by majority vote,
was in effect judging a constitutional qualification of the Member;
that is, the requirement that she take the the oath. The resolution
was not tantamount to an expulsion, which requires a two-thirds vote
to adopt.
The House recently adopted a resolution expressing the sense of
the House that each State should examine its existing statutes,
practices, and procedures governing special elections so that, in the
event of a catastrophe, vacancies in the House may be filled in a
timely fashion. 107-2, H. Res. 559, Oct. 2, 2002, p ____.