Even where no contest in a state has occurred, the election results and returns from each state that have reached the Congress, under the procedures of the Electoral Count Act, would have been officially certified by state officers. The official “certificates of ascertainment” regarding the election would have already been transmitted by the governor of each state to the National Archives and Records Administration and to the Presiding Officer of the joint session.[1] With reference to contests relating to other federal elections—federal congressional elections—or in other challenges to the credentials of Members-elect, the practice in Congress has been to place a clear burden of proof upon the objecting party to overcome the presumption of validity of an election that has already been officially certified by the proper state officials.[2] Regarding their own congressional elections, the House of Representatives and the Senate have adopted a “but for” test, requiring the contestant to prove that “but for” the alleged fraud or irregularity the result of the election would have been different.[3] It is likely that a similar standard as that applied in congressional precedents with respect to the burden of proof would at least influence Congress in the case of challenges to the results of a state-certified election of presidential electors.[4]
Author Contact Information
Jack Maskell
Legislative Attorney
jmaskell
crs.loc.gov, 7-6972
- ↑ 3 U.S.C. §§ 6-14.
- ↑ See generally George W. McCrary, A Treatise on the American law of Elections, 237–39 (4th ed. 1897): The certificate of election “constitutes prima facie evidence” of the regularity of the election proceedings and that the individual presenting such certificate has been “duly elected.” In Senate, Floyd M. Riddick and Allan S. Frumin, Riddick’s Senate Procedure: Precedents and Practices, “Credentials and Oath of Office,” S.Doc. 101-28, at 704, 708-10; Senate Legal Counsel, Contested Election Cases, at 11-14 (October 2006); in House, see Gormley v. Goss, H.Rept. 73-893 (1934).
- ↑ House: 2 U.S.C. § 385, and Pierce v. Pursell, H.Rept. 95-245 (1977). Senate, see Senate Legal Counsel, Contested Election Cases, supra at 22–3.
- ↑ II Hinds’ Precedents of the house of Representatives, § 1317 (1907); see William Holmes Brown, Charles W. Johnson, and John V. Sullivan, House Practice, Chapter 50, § 2, 112th Cong. 1st Sess. (2011): “On the theory that a government of laws is preferable to a government of men, the House has repeatedly recognized the importance of following its precedents and obeying its well-established procedural rules.”
to make an ultimate judgment.” Marie Garber and Abe Frank, Contested Elections and Recounts 1, A Summary of State Procedures for Resolving Disputed Federal Elections, National Clearinghouse on Election Administration, Federal Election Commission, 13 (1990).
