About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 1 (January 19, 2021)

handle is hein.crs/govebky0001 and id is 1 raw text is: h rv in~ Ii ~p January 19, 2021 The Federal Contested Elections Act: Overview and Recent Contests in the House of Representatives The Federal Contested Elections Act (FCEA; 2 U.S.C. §§381-396), enacted in 1969, rests at the intersection of federal election law and policy, legislative procedure, and cons titutionalprovisions regarding congressional authority over House elections andmembership. This CRS In Focus provides a brief overview of the FCEA and highlights recent contests initiated under the statute. FCEA contests rarely change electionresults, as doing so typically requires the Houseto overturn a state-certified electionresult. The FCEA covers general election or runoffraces for the U.S. House of Representatives (including elections for Deleg ate and Resident Commissioner). Pursuing a contest under the FCEA does not preclude other options that might be available to candidates under state law, through litigation, orby other methods prescribedby the House. Specifically, although an election contest may be initiated in other ways-for example, by a floor challenge to a Member's right to be sworn in-in modern practice, the FCEA is the primary method by which election contests come before the House. As such, other contest methods generally are not dis cussed here. What is a Contested Election? Generally, contested elections entail reexamining election conduct, such as ballot-counting or other election and voting procedures, after an election jurisdiction has finalized, or certified, the results. Contests are distinct from the standard canvass process used to verify election results and from recounts, audits, or other processes used to verify election accuracy, although investigations accompanying contests can involverecounts or audits. Constitutional Framework The Elections Clause of the U.S. Constitution empoweis the states with the initial and principal authority to administer the Times, Places and Manner of federal elections within their jurisdictions (Art. 1, § 4, cl. 1). At the same time, the Elections Clause provides Congress with overriding authority to make or alter such statelaws. Thus, congressional election recounts or challenges are typically conducted at the state level, including in state courts, and then presented to the House of Representatives. Under the Constitution, each house of Congress has the express authority to be the finaljudge ofthe Elections, Returns and Qualifications of its Members (Art. I, § 5, cl. 1). The Supreme Court has held that, in so judging these elections, Congress's determination of the right to a seat is a nonjusticiable political question, resulting in an unconditional and fmaljudgment (Roudebush v. Hartke, 405 U.S. 15, 19 (1972)). The Court has also observed that in the context of election contests, eachhouse of Congress https://crsrepo acts as ajudicialtribunal (Barry v. UnitedStates, 279 U.S. 597, 616 (1929)). Consistent with these Supreme Court rulings, the House, in considering contested elections, has at times accepted state counts, recounts, or other state determinations, whereas at others it has conducted its own recounts and made its own determinations and findings. Overview of the FCEA Key Terms. Two key terms-contestant and contestee-are integral to understanding theFCEA. The contestant is the candidate who brings the complaint (2 U.S.C. §381(3)). The contestee is the responding candidate, typically the state- certified winner (2 U.S.C. § 381(4)). Filing a Contest. Contests mustbe filed with the Clerk of the House within 30 days after the relev ant s tate election authority (e.g., the secretary of state or a canvassing board) has declared the results, and muststate with particularity the grounds for contesting the election (2 U.S.C §382). The FCEA specifies various requirements for the contents of the notice to contest and the service ofnoticeon the contestee. The contesteehas 30 days to respond, although failure to respond shallnot be deemed an admission of the truth of the contest claims by the contestee (2 U.S.C. § 381(5)). Even before providing a written answer, a contestee could raise severaldefenses to the contest, for example, that the contestant lacks standing to bring a contest under the act(3 U.S.C. §383). Even where there is little question ofthe outcome, FCEA's proceduraltimelines typically preclude the House from disposing of contests for at least thefirst few months of a new Congress. More complicated contests, although rare, can require substantial time to take depositions, conduct investigations, orseekassistance fromstate authorities or legislative support agencies (e.g., the Government Accountability Office (GAO)) to conduct audits or recounts. Burden ofProof. Simply objecting to the electionresults is insufficient fora successfulFCEA claim. Rather, the burden is upon contestant to prove that the election results entitle him to contestee's seat (2 U.S.C. §385). Therefore, the contestant must demonstrate that, but for voting irregularities or acts of alleged fraud, the contestant would have prevailed. (See, e.g., Pierce v. Pursell, H.Rept. 95-245 (1977).) In addition, although the House has broad authority over its elections, a state-issued election certificate generally provides prima facie evidence of the regularity and results of an election to theHouse (Deschler's Precedents ofthe United States House ofRepresentatives, H. Doc.94-661, 94 Cong., 2d ses s., (Washington: GPO, 1994) vol. 2, ch. 8, § 15). .conqress.ov 6

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most