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The Election Case of John A. Durkin v. Louis C. Wyman of New Hampshire (1975)

Photo of Senator John Durkin of New Hampshire
John Durkin (D-NH)

Issues
Contested election: recount of disputed ballots.

Chronology
Petitions of contest filed: Dec. 27,1974
Referred to committee: Dec. 30, 1974
Committee report: Jan. 13, 1974
Referred back to committee: Jan. 28, 1975
Committee report: May 22, 1975
Senate vote: July 30, 1975

Result: Seat declared vacant; new election held.


Background
In 1973 the announcement of retirement by New Hampshire Republican Norris H. Cotton thrust New Hampshire politicians into a vigorous contest for the seat. The fall campaign of 1974 pitted the youthful Democrat John A. Durkin, who had served as the state's insurance commissioner, against the conservative, widely known Republican representative, Louis C. Wyman. With a solid record of public service and good political connections, Wyman anticipated an easy victory in his traditionally Republican state. Surprisingly, on November 5, the expected Republican landslide failed to materialize as Wyman's lead dwindled to a mere 355 votes out of more than 200,000 cast. Durkin charged voting irregularities, demanded a recount, and declared, "It's still a horse race."

On November 27, after completing the recount, the secretary of state named John Durkin the winner by ten votes, and the governor issued him a conditional certificate of election. Louis Wyman promptly appealed to the New Hampshire State Ballot Law Commission, a move Durkin tried to check by legal maneuvers that eventually involved all levels of the New Hampshire courts. Durkin's attorney also sought an injunction in federal court to send the matter directly to the U.S. Senate, but on December 18 a federal district court denied the request. The ballot commission therefore conducted its own partial recount and announced on December 24 that Wyman was the victor by two votes. Republican Governor Meldrim Thomson, Jr., therefore issued a certificate of election to Louis Wyman on December 27 and rescinded Durkin's credentials, explaining that he had issued them prematurely. Wyman himself, however, still urged a new election as the best solution. With Durkin stripped of his credentials and a distressed public calling for a new election, it became increasingly clear that the stalemate would be taken to the United States Senate for resolution.

Statement of the Case
Based on the constitutional provision that each house of Congress is the final arbiter of its elections, John Durkin on December 27, 1974, filed a petition of contest with the U. S. Senate, which referred the matter to the Rules and Administration Committee's Subcommittee on Privileges and Elections. Durkin challenged Wyman's right to the seat and defended the validity of the first recount. On January 5, 1975, Wyman filed a response requesting that the Durkin challenge be dismissed and that he be seated. Meanwhile, because Norris Cotton had resigned, effective December 31, Governor Thomson appointed Wyman to fill the vacancy for the last few days of Cotton's term. Wyman thus became a senator for that brief period, although Congress was not in session at the time.

The subcommittee began by holding a hearing but, after a day of acrimonious testimony, passed the matter to the full Committee on Rules and Administration. When the full committee, made up of 5 Democrats and 3 Republicans, considered the matter on January 13, it deadlocked 4 to 4, first on a motion to seat Wyman without prejudice and then on one to ask both Durkin and Wyman to stand aside pending a review of the case. Democrat James Allen of Alabama, who believed strongly that Wyman should be seated provisionally because he presented valid credentials, voted with the Republicans both times to create the deadlock. The committee then unanimously decided that the contest should be brought before the full Senate.

Response of the Senate
When the Senate of the 94th Congress convened on January 14, 1975, with Democrats holding an overwhelming majority, John Durkin and Louis Wyman sat at separate tables at the back of the chamber as they listened to a floor debate rooted in party divisions. Pointing out that the New Hampshire courts had sustained the recall of Durkin's credentials, Republicans insisted that, since only Wyman possessed legitimate credentials issued by the governor, he should be seated without prejudice while the Rules Committee considered the matter. In the other contested election case facing the Senate at the time, they observed, the body did in fact seat Henry Bellmon (Republican-OK) while referring the issue to the Rules Committee. Democrats retorted that, although there were no allegations of fraud against Wyman, there were charges of error in the recount, and there was ample precedent for asking both claimants to step aside. Under existing New Hampshire law, a new election could only be held in the case of a tie, and on January 6, 1975, the supreme court of New Hampshire had ruled that the state courts were not empowered to review a contested federal election. Since Durkin had exhausted the New Hampshire state procedures, it was now up to the U.S. Senate to resolve the conflict.

Action was postponed for two weeks, after both sides agreed to delay a vote on the issue until January 28. In the meantime, the New Hampshire legislature on January 22 adopted a measure providing for a new election if the Senate declared that a vacancy existed, and Governor Thomson himself carried the new state law to Washington. Wyman then asked the Senate to rule the New Hampshire seat vacant so that state officials would be free to order the new election. When January 28 arrived, however, the Senate, with Democrats voting in the majority, first refused either to seat Wyman provisionally or to declare the seat vacant and then voted 58 to 34 to send the disputed New Hampshire election back to the Rules Committee. As James Allen contended on the Senate floor, refusing to seat a duly certified senator-elect was contrary to Senate precedent in cases where there were no allegations of fraud. "This is a matter that should not be decided on the basis of party lines," he declared.

After an additional three weeks of discussion, the Rules Committee on February 19 agreed to a procedure for recounting 3,500 disputed ballots. In attempting to weed out those that were not clearly controversial, the eight senators depended on a complicated system of, wherever possible, "masking" candidates' names and party affiliations on the ballots as they sought to interpret the confusing marks made by some voters. A special three-member auditing panel, consisting of the Democratic and Republican subcommittee counsels and Senate Parliamentarian Emeritus Dr. Floyd M. Riddick, was to review any remaining disputed ballots. The committee adopted rules requiring this panel to reach unanimous agreement on any questioned ballot or return it to the Rules Committee for another evaluation. The ballots were brought from New Hampshire to Washington, where they were kept under guard, and the review continued from February through April. The carefully devised process turned out to contain so many opportunities for irreconcilable partisan conflicts, however, that the committee experienced a succession of tie votes on enough contested ballots to affect the outcome of the election. Ultimately, the frustrated committee members realized that they would be unable to agree upon which person to seat and therefore in mid-May decided to go ahead and file a report. An accompanying resolution placed before the full Senate a simplified version of the questions the committee was unable to resolve, as well as the disputed ballots on which the committee held tie votes.

Having spent "over 200 hours" on the case, the Rules and Administration Committee had already established a new record for the time devoted to deliberating on a single subject. Then, beginning on June 11, the full Senate proceeded to discuss the case for more than six weeks, with Wyman and Durkin and their attorneys again observing from the back of the chamber. As a few southern Democrats joined with the minority Republicans to ensure that the Democrats would not achieve the 60 votes needed to end debate, the Senate over a period of several weeks in June and early July took an unprecedented six cloture votes on the subject, none of which succeeded. For his part, Durkin held out for a Senate solution, even amid Republican taunts that he dared not face a second election, and his party colleagues supported him. With each passing day, however, senators devoted less and less time to the New Hampshire dispute, turning their attention to other topics, as members of both parties recognized they were incapable of reaching a solution. Although by July 28 the Senate had actually resolved only one of the thirty-five disputed points referred to it by the Rules Committee, neither faction appeared willing to compromise.

The August recess approached, but the Senate remained hopelessly deadlocked. On July 28, the Washington Post ran an editorial charging that it would be "incredible" if the Senate were to "go on vacation for a month without settling the New Hampshire Senate election case." The newspaper suggested that Wyman and Durkin should try to reach some agreement to settle the matter. Following up on the suggestion, Louis Wyman wrote to Durkin that day, urging him to support a new election. Durkin initially refused but then, on July 29, reversed his earlier position and announced to a New Hampshire television audience his intention to agree to a new election. The next morning, July 30, he reported this change to the Democratic leadership, thus relieving the Senate from further deliberations on the topic. Later that same day, the Senate voted 71 to 21 to declare the seat vacant as of August 8. New Hampshire then arranged to hold a special election on September 16, 1975.

Conclusion
In a record-breaking turnout for a special election, New Hampshire voters gave Democrat John Durkin a convincing victory by a margin of more than 27,000 votes. As it happened, Norris Cotton, the innocent initiator of the events, administered the oath of office to Durkin. Once the Senate had declared the seat vacant, the New Hampshire governor had appointed Cotton to fill the vacancy, and he served from August 8 to September 18, 1975. In December 1975 the Senate agreed to reimburse Durkin and Wyman for a combined total of $227,000 in legal fees and to pay each of them $150 a day for the period from January to August 1975.

The New Hampshire contest had captured the attention of the national press. Citizens of New Hampshire were embarrassed by the flood of publicity, some of it very unfavorable. Weary of a dispute marred by vicious personal slurs and disturbed that the state had been left with only one senator for more than seven months, they wanted an end to the controversy. In fact, on July 30 the governor and council of New Hampshire adopted a resolution that was immediately transmitted to Washington, threatening that, if the Senate went on vacation without resolving the matter, the state attorney general should go to court to have senators' salaries withheld.

As had been the case with so many of the contested elections handled by the Senate, the body was unable to avoid partisanship in its review and deliberations. Once the dispute reached the Senate floor, Republicans, fearing the Democrats planned to use their overwhelming numbers to declare Durkin the winner, managed to hold solidly together on vote after vote, joined on cloture votes by enough southern Democrats to prevent the Senate from acting. The strategy did succeed in blocking action, but, when combined with the Democrats' equally staunch support of Durkin, it led to a seven-month process that left the Senate appearing partisan, confused, and ineffectual to the American public.

John Durkin failed in his reelection attempt in 1980, and returned to the practice of law in New Hampshire. Following his defeat in the September, 1974, special election, Louis Wyman returned to New Hampshire where he served as associate justice on the New Hampshire superior court. He died on May 5, 2002.


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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