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The Election Case of Tom Sweeney v. Harley M. Kilgore of West Virginia (1949)

Harley Kilgore
Harley Kilgore

Issues
Campaign irregularities; Senate refused recount.

Chronology
Petitions received: Jan. 3, 1947
Referred to committee: Jan. 6, 1947
Committee report: July 28, 1949
Senate vote: July 28, 1949

Result: Kilgore retained seat


Background
A precinct in which intoxicated polling officials menacingly brandished firearms to intimidate voters was but one of the election irregularities charged by unsuccessful Republican candidate Tom Sweeney after his failure to oust incumbent Democrat Harley M. Kilgore in the 1946 West Virginia senatorial contest. Sweeney also asserted that Democrats bought votes at the polls and that  Republican ballots had been stolen before they could be tallied. At the conclusion of this hectic election, the disappointed Sweeney fell short of victory by fewer than 4,000 votes.

Statement of the Case
On January 4, 1947, Harley Kilgore presented his credentials and was seated for a second term in the United States Senate. The day before, Tom Sweeney had filed a petition contesting the West Virginia election and itemizing numerous abuses in twelve West Virginia counties. Charging that the "errors, irregularities, illegalities, and fraud" were sufficient to have affected the outcome and that he, not Kilgore, had been legally elected, Sweeney asked the Senate to investigate. The Senate referred his petition to the Committee on Rules and Administration, which forwarded the matter to its Subcommittee on Privileges and Elections. The subcommittee conducted a preliminary investigation in two counties cited by Sweeney and decided on July 9, 1947, to recommend a full investigation in all twelve counties.

Response of the Senate
On July 15, 1947, Harley Kilgore asked the committee to dismiss the charges against him, insisting that Sweeney had shown only that the opportunity for wrongdoing existed in some counties. The senator called the claim that county commissioners were biased "a reflection by inference and innuendo" upon the honor of West Virginia officials. The Rules Committee rejected Kilgore's request on July 16, however, and instead agreed to the subcommittee's call for an investigation into the records of the twelve counties in question. If that inquiry showed Sweeney rather than Kilgore in the lead, the committee would then extend the probe to the remaining counties in the state.

Emphasizing that its sole purpose was to check voting irregularities, the committee denied the request to recount all the ballots statewide. A few days earlier, on July 9, the subcommittee had decided not to carry out a recount, consistent with its policy that the Senate should not undertake recounts when they could be conducted under state law. Because Sweeney had originally asked West Virginia for recounts in several counties but had abandoned the effort before any had been completed, thus failing to "pursue this remedy available under state law," the full committee saw no need for the Senate to act.

A year later, on July 28, 1949, the committee reported that a team of twenty-two field investigators had taken eighteen months to compile the needed information about the West Virginia election. In a number of counties, the investigators found poorly kept voting registers in which recorders failed to delete a citizen's name upon a death or family move, but in only two of those precincts did they uncover evidence of fraud, and that affected a total of only 274 votes divided between both candidates. In three counties evidence did show that "a substantial amount of money was paid to individual voters" by representatives of both parties. The committee noted, however, that it was impossible to determine the actual number of votes affected, since it appeared that the Democrats generally paid people who would have voted for the party's candidates anyway while the Republicans gave money to their own supporters. Thus, the payments were "more in the nature of a subsidy for the physical act of voting" than for choosing a particular candidate. A longstanding family feud turned out to be the cause of the single incident of drunken election officials, one of whom had brandished a pistol. No evidence was found of excessive campaign expenditures by either Senate candidate. In one county, 2,300 ballots had been stolen, but since they had already been officially counted, the loss did not affect the final tally. The committee did recommend throwing out all the votes from three precincts where evidence was found of substantial and blatantly fraudulent voting. Eliminating these ballots still left Kilgore the victor by a margin of more than 2,900 votes.

A mountain of evidence had led the committee to conclude that "neither the Democrats nor Republicans appear to have had a monopoly" on the rampant illegalities, to which there was no identifiable general pattern. For this reason, the committee informed the Senate that it saw no point in expanding the investigation to the entire state. The committee therefore recommended that Harley Kilgore be declared duly elected and entitled to retain his seat. That same day, the Senate agreed by voice vote.

Conclusion
Harley Kilgore, the first West Virginia senator elected to three consecutive terms since direct election in 1914, served in the Senate until his death in 1956.


Source: Adapted from Anne M. Butler and Wendy Wolff. United States Senate Election, Expulsion, and Censure Cases, 1793-1990. S. Doc. 103-33. Washington, GPO, 1995.

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