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H.Doc.107-285 Reproduced with the permission of The Washington Post,  2002, http://www.washingtonpost.com/wp-srv/nation/specials/attacked/remembrance/vic--list.html ...


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U.S. 429; Pollock v. Farmers' Loan & Trust Co. (Rehearing), 158 U.S. 
601; Thomas v. United States, 192 U.S. 363; Flint v. Stone Tracy Co., 
220 U.S. 107; Corporation Tax cases, 220 U.S. 107; Eisner v. Macomber, 
252 U.S. 189; New York Trust Co. v. Eisner, 256 U.S. 345; Franklin v. 
Massachusetts, 505 U.S. 788 (1992); Utah v. Evans, 536 U.S. 452 (2002).

  \4\ When vacancies <<NOTE: Sec. 17. Writs for elections to vacancies 
in representation.>> happen in the Representation from any State, the 
Executive Authority thereof shall issue Writs of Election to fill such 
Vacancies.

  Vacancies are caused by death, resignation, declination, withdrawal, 
or by action of the House in declaring a vacancy as existing or causing 
one by expulsion.
  It was long the <<NOTE: Sec. 18. Vacancy from death.>> practice to 
notify the executive of the State when a vacancy was caused by the death 
of a Member during a session (II, 1198-1202); but since improvements in 
transportation have made it possible for deceased Members to be buried 
at their homes it has been the practice for State authorities to take 
cognizance of the vacancies without notice. When a Member dies while not 
in attendance on the House or during a recess the House is sufficiently 
informed of the vacancy by the credentials of his successor, when they 
set forth the fact of the death (I, 568). The death of a Member-elect 
creates a vacancy, although no certificate may have been awarded

[[Page [10]]]

(I, 323), and in such a case the candidate having the next highest 
number of votes may not receive the credentials (I, 323; VI 152). A 
Member whose seat was contested dying, the House did not admit a 
claimant with credentials until contestant's claim was settled (I, 326); 
where a contestant died after a report in his favor, the House unseated 
the returned Member and declared the seat vacant (II, 965), and in a 
later case the contestant having died, the committee did not recommend 
to the House a resolution it had agreed to declaring he had not been 
elected (VI, 112). In the 93d Congress, when two Members-elect were 
passengers on a missing aircraft and were presumed dead, the Speaker 
laid before the House documentary evidence of the presumptive death of 
one Member-elect and the declaration of a vacancy by the Governor, as 
well as evidence that the status of the other Member-elect had not been 
officially determined by State authority. The House then adopted a 
privileged resolution declaring vacant the seat of the latter Member-
elect to enable the Governor of that State to call a special election 
(Jan. 3, 1973, p. 15). For further discussion, see Sec. 23, infra.
  In recent practice <<NOTE: Sec. 19. Vacancy from resignation.>> the 
Member frequently informs the House by letter that his resignation has 
been sent to the State executive (II, 1167-1176) and this is 
satisfactory evidence of the resignation (I, 567). However, Members have 
resigned by letter to the House alone, it being presumed that the Member 
would also notify his Governor (VI, 226). Where a Member resigned by 
letter to the House the Speaker was authorized to notify the Governor 
(Nov. 27, 1944, p. 8450; July 12, 1957, p. 11536; Sept. 1, 1976, p. 
28887). Where a Member does not inform the House, the State executive 
may do so (II, 1193, 1194; VI, 232). The House has, on occasion, learned 
of a Member's resignation by means of the credentials of his successor 
(II, 1195, 1356). Where the fact of a Member's resignation has not 
appeared either from the credentials of his successor or otherwise, the 
Clerk has been ordered to make inquiry (II, 1209) or the House has 
ascertained the vacancy from information given by other Members (II, 
1208).
  It has been established that a Member or Senator may resign, 
appointing a future date for his resignation to take effect, and until 
the arrival of the date may participate in the proceedings (II, 1220-
1225, 1228, 1229; VI, 227, 228; Dec. 15, 1997, p. ----; June 5, 2001, p. 
----; Nov. 27, 2001, p. ----; Jan. 27, 2003, p. ----). It has been 
possible even for a Member to resign a seat in the House ``effective on 
the election of a successor'' (Deschler, ch. 8, Sec. 9.3). However, the 
State concerned must be willing to treat the prospective resignation as 
a Constitutional predicate for the issuance of a writ of election to 
fill a vacancy (see, e.g., Jan. 8, 1952, p. 14, indicating that the 
Executive of the State declined to take cognizance of a prospective 
resignation; and July 9, 1991, p. ----, Nov. 12, 1991, p. ----, and Jan. 
27, 2003, p. ----, indicating that the Executive of the State took 
cognizance of a prospective resignation). When the Governor of Oklahoma 
received a prospective resignation from one of its Members, the State 
provided by statute (enrolled Senate Bill Number 7X) for the holding of

[[Page [11]]]

a special election before the effective date of the resignation (Feb. 
27, 2002, p. ----).
  For the State to take cognizance of a prospective resignation, it must 
have assurances that there is no possibility of withdrawal (or 
modification). In one case a Member who had resigned was not permitted 
by the House to withdraw the resignation (II, 1213). However, the House 
has allowed withdrawal in the case of defective resignation; that is, 
where the Member had not actually transmitted the letter of resignation 
(VI, 229), or had transmitted it to an improper state official (Oct. 9, 
1997, p.----). A Member may include in a letter of prospective 
resignation a statement of intention that the resignation be 
``irrevocable'' in order to allay any concern about the prospect of 
withdrawal (June 5, 2001, p. ----; Jan. 27, 2003, p. ----).
  Acceptance of the resignation of a Member of the House is unnecessary 
(VI, 65, 226), and the refusal of a Governor to accept a resignation 
cannot operate to continue membership in the House (VI, 65). Only in a 
single exceptional case has the House taken action in the direction of 
accepting a resignation (II, 1214). Sometimes Members who have resigned 
have been reelected to the same House and taken seats (II, 1210, 1212, 
1256; Jan. 28, 1965 and June 16, 1965, pp. 1452 and 13774; Jan. 6, 1983 
and Feb. 22, 1983, pp. 114 and 2575). A Member who has not taken his 
seat resigned (II, 1231).
  A letter of resignation is presented as privileged (II, 1167-1176); 
but a resolution to permit a Member to withdraw his resignation was not 
so treated (II, 1213). The Speaker having been elected Vice President 
and a Representative of the succeeding Congress at the same election, 
transmitted to the Governor of his State his resignation as a Member-
elect (VI, 230, 453). A Member of the House having been nominated and 
confirmed as Vice President pursuant to the 25th amendment, submitted a 
letter of resignation as a Representative to the Governor of his State, 
and a copy of his letter of resignation was laid before the House by the 
Speaker following the completion of a joint meeting for his swearing-in 
as Vice President (Dec. 6, 1973, p. 39927). A sitting Member having been 
confirmed as Secretary of Defense, his letter of resignation was laid 
before the House prior to his taking the oath of that office (Mar. 20, 
1989, p. 4976).
  A Member who <<NOTE: Sec. 20. Vacancy from declination.>> has been 
elected to a seat may decline to accept it, and in such a case the House 
informed the executive of the State of the vacancy (II, 1234). The House 
has decided an election contest against a returned Member who had not 
appeared to claim the seat (I, 638). In one instance a Member-elect who 
had been convicted in the courts did not appear during the term (IV, 
4484, footnote). On November 7, 1998, less than a week after his re-
election as Representative from the 6th district of Georgia, Speaker 
Gingrich announced that he would not be a candidate for Speaker in the 
106th Congress and that he would resign his seat as a Member of the 
106th Congress. Although the letter of ``withdrawal'' was tendered on 
November 22, the

[[Page [12]]]

Governor did not attempt to call a special election until after the term 
began on January 3, 1999 (Jan. 6, 1999, p.----).
  At the time <<NOTE: Sec. 21. Vacancy by withdrawal.>> of the secession 
of several States, Members of the House from those States withdrew (II, 
1218). In the Senate, in cases of such withdrawals, the Secretary was 
directed to omit the names of the Senators from the roll (II, 1219), and 
the act of withdrawal was held to create a vacancy which the legislature 
might recognize (I, 383).
  Where the House, <<NOTE: Sec. 22. Vacancy by action of the House.>> by 
its action in a question of election or otherwise, creates a vacancy, 
the Speaker is directed to notify the Executive of the State (I, 502, 
709, 824; II, 1203-1205; Mar. 1, 1967, p. 5038; Jan. 3, 1973, p. 15; 
Feb. 24, 1981, pp. 2916-18). A resolution as to such notification is 
presented as a question of privilege (III, 2589), as is a resolution 
declaring a vacancy where the Member-elect was unable to take the oath 
of office or to resign because of an incapacitating illness (Feb. 24, 
1981, pp. 2916-18).
  The House declines <<NOTE: Sec. 23. Questions as to the existence of a 
vacancy.>> to give prima facie effect to credentials, even though they 
be regular in form, until it has ascertained whether or not the seat is 
vacant (I, 322, 518, 565, 569), and a person returned as elected at a 
second election was unseated on ascertainment that another person had 
actually been chosen at the first election (I, 646). Where a Member was 
reelected to the House, although at the time of the election he had been 
unaccounted for for several weeks following the disappearance of the 
plane on which he was a passenger, the Governor of the State from which 
he was elected transmitted his certificate to the House in the regular 
fashion. When the Member-elect was still missing at the time the new 
Congress convened, and circumstances were such that other passengers on 
the missing plane had been presumed dead following judicial inquiries in 
the State where the plane was lost, the House declared the seat vacant 
(H. Res. 1, 93d Cong., Jan. 3, 1973, p. 15). In the 108th Congress the 
House codified in clause 5 of rule XX its practice of accounting for 
vacancies (sec. 2(l), H. Res. 5, Jan. 7, 2003, p. ----).
  The term ``vacancy'' <<NOTE: Sec. 24. Functions of the State executive 
in filling vacancies.>> as occurring in this paragraph of the 
Constitution has been examined in relation to the functions of the State 
executive (I, 312, 518). A Federal law empowers the States and 
Territories to provide by law the times of elections to fill vacancies 
(I, 516; 2 U.S.C. 8); but an election called by a governor in pursuance 
of constitutional authority was held valid although no State law 
prescribed time, place, or manner of such election (I, 517). Where two 
candidates had an equal number of votes, the governor did not issue 
credentials to either, but ordered a new election after they had waived 
their respective claims (I, 555). A candidate elected for the 104th 
Congress was appointed by the Governor to fill a vacancy for the 
remainder of the 103d Congress pursuant to a State law requiring the 
Governor to appoint the candidate who won the election to

[[Page [13]]]

the 104th Congress. In that case the House authorized the Speaker to 
administer the oath to the Member-elect and referred the question of his 
final right to the seat in the 103d Congress to the Committee on House 
Administration (Nov. 29, 1994, pp. 29585, 29586). For a discussion of a 
State election to fill a prospective vacancy of the House, see Sec. 19.
<<NOTE: Sec. 25. Term of a Member elected to fill a vacancy.>>   A 
Member elected to fill a vacancy serves no longer time than the 
remainder of the term of the Member whose place he fills (I, 3). For the 
compensation and allowances of such Members, see Sec. 87, infra.

<<NOTE: Sec. 26. House chooses the Speaker and other officers.>>   \5\ 
The House of Representatives shall chuse their Speaker and other 
Officers; * * *

  The officers of the House are the Speaker, who has always been one of 
its Members and whose term as Speaker must expire with his term as a 
Member; and the Clerk, Sergeant-at-Arms, Chief Administrative Officer, 
and Chaplain (I, 187), no one of whom has ever been chosen from the 
sitting membership of the House and who continue in office until their 
successors are chosen and qualified (I, 187). In one case the officers 
continued through the entire Congress succeeding that in which they were 
elected (I, 244, 263). Former officers include Doorkeeper (abolished by 
the 104th Congress, see Sec. 663a, infra) and Postmaster (abolished 
during the 102d Congress, see Sec. 668, infra). The House formerly 
provided by special rule that the Clerk should continue in office until 
another should be chosen (I, 187, 188, 235, 244). Currently, certain 
statutes impose on the officers duties which contemplate their 
continuance (I, 14, 15; 2 U.S.C. 75a-1, 83).
  The Speaker, who <<NOTE: Sec. 27. Election of a Speaker.>> was at 
first elected by ballot, has been chosen viva voce by surname in 
response to a call of the roll since 1839 (I, 187). The Speaker is 
elected by a majority of Members-elect voting by surname, a quorum being 
present (I, 216; VI, 24; Jan. 7, 1997, p. 117). The Clerk appoints 
tellers for this election (I, 217). Ultimately, the House, and not the 
Clerk, decides by what method it shall elect the Speaker (I, 210). On 
two occasions, by special rules, Speakers were chosen by a plurality of 
votes; but in each case the House by majority vote adopted a resolution 
declaring the result (I, 221, 222). The House has declined to choose a 
Speaker by lot (I, 221).
  The motion to proceed to the election of a Speaker is privileged (I, 
212, 214; VIII, 3883), and debatable unless the previous question is 
ordered (I, 213). Relying on the Act of June 1, 1789 (2 U.S.C. 25), the 
Clerk recognized for nominations for Speaker as being of higher 
constitutional privilege than a resolution to postpone the election of a 
Speaker and instead provide for the election of a Speaker pro tempore 
pending the disposition of certain ethics charges against the nominee of 
the majority party (Jan. 7, 1997, p. 115). On several occasions the 
choice of a Speaker has been delayed for several weeks by contests (I, 
222; V, 5356, 6647, 6649; VI,

[[Page [14]]]

24). The contest over the election of a Speaker in 1923 was resolved 
after a procedure for the adoption of rules for the 68th Congress had 
been presented (VI, 24). In 1860 the voting for Speaker proceeded 
slowly, being interspersed with debate (I, 223), and in one instance the 
House asked candidates for Speaker to state their views before 
proceeding to election (I, 218).
  A proposition <<NOTE: Sec. 28. Vacancies in the Office of 
Speaker.>> to elect a Speaker is in order at any time a vacancy exists 
and presents a question of the highest privilege (VIII, 3383). Upon a 
vacancy in the Office of Speaker, the House elects a new Speaker either 
viva voce following nominations (in the case where a Speaker has died 
between sessions of Congress or resigned) or by resolution (in the case 
where a Speaker has died during a session of Congress). For example, in 
the case where the Speaker had died between sessions of Congress, the 
Clerk at the next session called the House to order, ascertained the 
presence of a quorum, and then the House proceeded to elect a successor 
viva voce following nominations (I, 234; Jan. 10, 1962, p. 5). In a case 
where the Speaker died during a session of Congress, but not while the 
House was sitting, the Clerk on the following day called the House to 
order and the Speaker's successor was elected by resolution (June 4, 
1936, p. 9016; Sept. 16, 1940, p. 12231). In a case where the Speaker 
resigned ``on the election of my successor'' (May 31, 1989, p. 10440), 
he entertained nominations for Speaker and, following the roll call, 
declared the winner of the election ``duly elected Speaker'' (June 6, 
1989, p. 10801). In one instance a Speaker resigned on the last day of 
the Congress, and the House unanimously adopted a motion to elect a 
successor for the day (I, 225).
  Form of resolution offered on death of a Speaker (Sept. 16, 1940, p. 
12232; Jan. 10, 1962, p. 9) and of a former Speaker (VIII, 3564; Mar. 7, 
1968, p. 5742; H. Res. 328, Jan. 25, 1994, p. 89; H. Res. 418, Feb. 8, 
2000, p. ----). A resolution declaring vacant the Office of Speaker is 
presented as a matter of high constitutional privilege (VI, 35). 
Speakers have resigned by rising in their place and addressing the House 
(I, 231, 233), by calling a Member to the Chair and tendering the 
resignation verbally from the floor (I, 225), by tendering the 
resignation during recognition under a question of personal privilege 
(May 31, 1989, p. 10440), or by sending a letter which the Clerk reads 
to the House at the beginning of a new session (I, 232). When the 
Speaker resigns no action of the House excusing him from service is 
taken (I, 232). Instance wherein the Speaker, following a vote upon an 
essential question indicating a change in the party control of the 
House, announced that under the circumstances it was incumbent upon the 
Speaker to resign or to recognize for a motion declaring vacant the 
Office of Speaker (VI, 35). In the 108th Congress the House adopted 
clause 8(b)(3) of rule I, under which the Speaker is required to deliver 
to the Clerk a list of Members in the order in which each shall act as 
Speaker pro tempore in the case of a vacancy in the Office of Speaker

[[Page [15]]]

(sec. 2(a), H. Res. 5, Jan. 7, 2003, p. ----). The Speaker delivered to 
the Clerk the first such letter on February 10, 2003 (Mar. 13, 2003, p. 
----).
<<NOTE: Sec. 29. Power of House to elect its officers as related to 
law.>>   The effect of a law to regulate the action of the House in 
choosing its own officers has been discussed (IV, 3819), and such a law 
has been considered of doubtful validity (V, 6765, 6766) in theory and 
practice (I, 241, 242). The Legislative Reorganization Act of 1946 (2 
U.S.C. 75a-1) authorizes the Speaker to fill temporary vacancies in the 
offices of Clerk, Sergeant-at-Arms, Chief Administrative Officer, and 
Chaplain. For a history of the Speaker's exercise of such authority, see 
Sec. 640, infra;  and, for further information on the elections of 
officers, see Deschler, ch. 6.
  The Office of <<NOTE: Sec. 30. Election of Clerk in relation to 
business.>> Clerk becoming vacant, it was held that the House would not 
be organized for business until a Clerk should be elected (I, 237); but 
in another instance some business intervened before a Clerk was elected 

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