Right of losing candidate in contested election to address the Senate.
Notice of contest: Mar. 8, 1851
Referred to committee: Dec. 1, 1851
Committee report: Aug. 21, 1852
Senate vote: Aug. 27, 1852
Result: Mallory retained seat
David Levy and Stephen R. Mallory, each born in the West Indies, migrated to Florida and entered local politics. In 1845, with the admission of Florida to the Union, Levy (D) became one of the state's first senators, having served previously as the territorial delegate. Early in 1846, at Levy's request, the Florida state legislature officially changed his name to David Levy Yulee. In 1851 the state general assembly failed to reelect Yulee when, on three ballots, the 58 members repeatedly divided their votes 29 to 29. One-half of the legislature voted for David Yulee, but the other half registered blank votes. Two days later, 31 members voted for Stephen R. Mallory (D) and 27 voted for Yulee. The Florida assembly declared Mallory the victor.
Statement of the Case
Early in March 1851, during the brief special session, the Senate received a letter of contest from Yulee, but on December 1, 1851, at the beginning of the regular session of the Senate, the body seated Stephen Mallory. It then referred his credentials and Yulee's letter to a specially appointed committee for review.
Yulee maintained that Mallory's election violated Florida election rules but that the complexity of the local political regulations restricted the ability of non-Floridians to grasp the meaning of the state laws. Yulee asked that the election be turned back to the Florida legislature as the only body capable of interpreting the intent of the law.
Response of the Senate
The committee reported more than a year later on August 21, 1852, recommending that the Senate adopt a resolution stating that Stephen Mallory had been duly elected. During the Senate debate on August 27, James A. Bayard, Jr. (D-DE) objected to the requests of Yulee's supporters that he be heard on the floor of the Senate. Bayard argued that further debate only obstructed the completion of public business in a session that was rapidly drawing to a close. His remarks precipitated a lengthy debate over Yulee's right to floor time. Yulee's opponents protested that, if the contestant gained the floor, precious time would be wasted.
The tardiness with which the committee had completed the Yulee report added weight to the senator's cause. Stung by these criticisms, Jesse D. Bright (D-IN) explained that Chairman John M. Berrien (W-GA) had been called home for a "domestic affliction" and that upon his return Bright himself left Washington. Once the committee finally assembled, Bright explained, it was his understanding that both Florida contestants preferred to defer the decision until after the national political conventions. this may have been true of David Yulee, who orchestrated Stephen Douglas' attempt to capture the 1852 Democratic presidential nomination, but Mallory denied vehemently that he had requested any postponement. To emphasize his desire for a speedy resolution, Mallory urged the Senate to give Yulee two hours to speak and promised to say nothing in reply.
Finally given his opportunity to address the Senate, and with Edwin M. Staton as his counsel, Yulee reiterated his argument that only the Florida legislature could understand the complexities of an election resolution passed in 1845. In addition, he asserted that the 29 blank votes actually had been cast in his favor. Yulee's opponents countered that the current Florida legislature was not the same as that involved in the election dispute and questioned how a blank vote assumed the character of assent. On the subject of the blank votes, one senator noted that, after each of the three failed ballots, the president of the Florida joint meeting announced "no election." Had any of the Florida legislators intended that the blank vote be an aye, ample opportunity had existed for individuals to note the mistake. Clearly, the purpose of the blank votes had been to show that the Florida legislature had a quorum for an election, thus avoiding any future challenges by Yulee on that procedural point.
The Senate unanimously voted to reject Yulee's claim to the seat and recognized Mallory as the duly elected Florida senator.
On March 18, 1853, the Senate voted to grant Yulee per diem and mileage for the period when he was contesting the seat.
Florida returned David Yulee to its other Senate seat in 1855. He and Mallory represented the state together until they both withdrew with other southern senators on January 21, 1861. During the Civil War, Mallory served as secretary of the navy for the Confederacy. He practiced law in Florida after the war and died in 1873. Yulee served in the Confederate Congress and was a prisoner of state briefly when the South was defeated. In 1880 Yulee moved to Washington, DC. He died in 1886.
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.