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1 1 (November 2, 2022)

handle is hein.crs/govejgu0001 and id is 1 raw text is: Updated November 2, 2022 The Federal Contested Election Act: Overview and Recent Contests in the House of Representatives The FederalContested Election Act (FCEA; 2U.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. FCEA contests rarely change electionresults, as doing so typically requires the Houseto overturn a state-certified electionresult. The FCEA covers general election or subsequent runoff races for the U.S. House of Representatives (including elections for Delegate and Resident Commis sioner). Pursuing a contest under the FCEA does not preclude a candidate frompursuing other options available under state law, through litigation, or by other methods prescribed by the House. Specifically, although an election contest may be initiated in other way s-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 discussed here. What is a Contested Elecnon? 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 dis tinct from the canvass process used to verify electionresults and from recounts, audits, or other processes used to verify election accuracy, although investigations accompanying contests can involve recounts or audits. ConsttutionaJ 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 ofcongressional elections within theirjuris dictions (Art. 1, § 4, cl. 1). At the same time, the Elections Clause provides Congress with overriding authority to make or alter such state laws. The Constitutionfurtherprovides thateachhouseofCongress has the express authority to be the fmaljudge of the Elections, Returns and Qualifications of its Members (Art.I, § 5, cl. 1). Thus, congressional electionrecounts, audits, or other verifications are typically conducted at the state level, which sometimes involves statecourts, and contests are presented to the House of Representatives, which serves as the final arbiter of such elections. The Supreme Court has held that, in judging congressional elections, Congress's determination of the right to a seat is a nonjusticiable political question, resulting inan unconditional and finaljudgment (Roudebush v. Hartke, 405 U.S. 15, 19 (1972)). The Court has also observed that in the context of election contests, eachhouse of Congress acts as ajudicialtribunal (Barry v. UnitedStates, 279 U.S. 597, 616 (1929)). Cons is tent with these Supreme Court rulings, the House, in considering contested elections, has at times accepted s tate counts, recounts, or other state determinations; at others it has conductedits own recounts and made its own determinations and findings. Overview of the FCEA Two key terms-contestant and contestee-are integral to understanding the FCEA. 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)). Contests must be filed with the Clerkof the House within 30 days after the relevant state election authority (e.g., the secretary of state or a canvassing board) has declared the results, and must s tate with particularity the grounds for contesting the election (2 U.S.C §382(b)). The FCEA specifies five permissible methods of service of process and requires that proof of service be made promptly to the Clerk of the House. (2 U.S.C § 382(c)). The contestee has 30days 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. § 385). Even before providing a written answer, a contestee couldraise several defenses to the contest, for example, that the contestant lacks standing to bring a contest under the act (3 U.S.C. § 383(b)). Even where there is little question ofthe outcome, FCEA's proceduraltimelines typically preclude the House from disposing ofcontests for at least thefirst few months ofa new Congress. More complicated contests, although rare, can require substantial time to take depositions, conduct investigations, or seek assistance fromstate authorities or legislative support agencies (e.g., the Government Accountability Office (GAO)) to conduct audits or recounts. Simply objecting to the election results is insufficient for a successful FCEA claim. Rather, the burden is upon contestant to provethatthe electionresults entitle himto 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 the House(Deschler'sPrecedents ofthe UnitedStates House ofRepresentatives, H.Doc. 94-661, 94 Cong., 2d sess., (Washington: GPO, 1994) vol.2, ch.8, §15). Cog 9

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