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The Election Case of Henry A. Du Pont of Delaware (1897)

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Conduct of election; form of credentials; Senate refused to reverse previous action.

Chronology #1
Petition submitted: Dec. 4, 1895
Referred to committee: Dec. 4, 1895
Committee report: Feb. 18, 1896
Senate vote: May 15, 1896

Result: Not seated

Chronology #2
Petition submitted: Jan. 12, 1897
Referred to committee: Jan. 12, 1897
Committee report: Mar. 1, 1897
No Senate action

Result: Not seated

For months in early 1895, the Delaware legislature had been deadlocked among three Republican candidates in its effort to elect a United States senator. Then, on April 8, Delaware Governor Joshua Marvil died, throwing the state legislature into an election dispute involving Henry A. du Pont, railroad president and scion of that state's prominent entrepreneurial-political family. The central figure in the controversy proved not to be du Pont but William T. Watson, former speaker of the Delaware senate, who ascended to the governor's chair upon Marvil's demise. On May 9, 1895, Watson, claiming he had never given up his state senate seat when taking over the governorship, presided over and voted in the legislature's joint session, in an effort to defeat any Republican candidate for U.S. senator, of whom du Pont was the strongest. As a result, du Pont received 15 of the 30 votes cast in the joint assembly, one less than the majority needed for election. If Watson's vote against du Pont was disqualified, however, then du Pont had a majority of the 29 legitimate votes cast. Apparently believing this to be the case, one Republican senator declared du Pont elected.

Statement of the Case
On December 4, 1895, at the beginning of the Fifty-fourth Congress, supporters of Henry du Pont entered a petition on his behalf, claiming that he had been elected to the Senate for the term beginning March 4, 1895. Du Pont charged that Watson illegally performed dual functions, essentially destroying the traditional separation between the executive and legislative branches, when as governor he participated in the assembly's election. Although du Pont possessed no credentials signed by the governor, he submitted a certificate of election signed by the speaker and the clerk of the Delaware house. Du Pont contended that he had won a majority vote if Watson's ballot was discounted. The Republican-controlled Senate referred du Pont's petition to the Committee on Privileges and Elections, together with several affidavits that arrived from Delaware during January 1896.

Response of the Senate
On February 18, 1896, a divided committee submitted its report. The Republican majority favored du Pont, holding that, since Watson's action violated both the Delaware constitution and U.S. laws, his vote should not count. Supporting du Pont's contention that he received a majority of the legally cast votes, the report declared that, of the two contradictory sets of evidence, the assembly's official journal entries of proceedings should take precedence over individual affidavits submitted by du Pont's opponents. The opponents contended that, before the senate entered the joint assembly for the U.S. Senate election, Watson had presided over legislative business and voted in the state senate on May 9 without any objection being raised. The journal, on the other hand, showed no such legislative action by Watson. Before the joint assembly adjourned, the legislators who had voted for du Pont had vigorously objected to Watson's participation in the vote, but Watson officially declared that the legislature had failed to elect a U.S. senator. While reaffirming a legislature's right to judge the qualifications of its own members, the committee majority ruled that the power was irrelevant in this case, because the Delaware constitution forbade an individual to serve simultaneously as governor and member of the legislature. The majority report also asserted that du Pont did not need a certificate of election signed by the governor since the speaker and clerk of the state house certified that he had received a majority of the legally cast votes.

The minority report, filed by the committee's Democratic members, specifically contended that the two offices of governor and state senator were not incompatible under the Delaware constitution, because Watson as senate speaker was only "exercising the office of governor" and did not become governor. As precedent the report cited the cases of three former senate speakers who had temporarily exercised the authority of governor and had then returned to the senate to complete their terms once a new permanent governor was chosen.

The report also stressed that it was the exclusive prerogative of the Delaware senate to determine the qualifications of its members and the U.S. Senate had no right to even consider the matter. Thus, since the Delaware constitution provided for 30 members in the combined houses of the legislature and 30 votes had been cast in the election, the United States Senate could not subtract the vote of one senator when nothing in the state record showed he had been judged unqualified by his own assembly.

In a Senate fiercely concerned with the delicate balance between parties and factions because of closely contested financial legislation, debates on the legitimacy of Republican Henry du Pont's claim proved lengthy and legalistic, as the floor orations continued for almost three months. The minute dissections of the Delaware constitution included repeated use of the terms "vacancy," "interim function," "devolving duty," and "exercise of office," yet when the matter came to a vote, the extensive constitutional analysis had done nothing to shift political loyalties. On May 15, 1896, by a party-line vote of 31 to 30, the Senate rejected du Pont's claim. Four Populists and one Silver party member joined with Senate Democrats to outvote the Republicans on the issue.

The case did not end there, however. On January 12, 1897, Henry du Pont brought his contest back to the Senate. In a new petition he charged that an error in the announced pairs in May 1896 had cost him a favorable decision and that the Senate had misunderstood the construction of the Delaware constitution. This petition went to the Committee on Privileges and Elections, which reported on March 1, 1897. Even though a majority of committee members still believed that the Senate should have seated du Pont, they did not find that there had been any mistake in counting the pairs. Since the claimant thus had no new evidence to present, the entire committee considered that the Senate's action in the case had been final. In a strong closing statement, the report cautioned the Senate to resist the temptation to reverse its own judgments or to vacate and award seats according to changing political majorities. The Senate took no action on the second report.

Du Pont's case, although unsuccessful for him, established several precedents. The Senate had agreed to investigate whether a claimant without credentials signed by the governor had a right to be seated. The committee determined that the journal of a state legislature showing that a candidate had been properly elected could serve as a substitute for such credentials. In addition, the committee ruled that, once the Senate had rendered a judgment in a case, the matter could only be reopened upon the submission of new evidence. During the debate, opponents of du Pont forcefully restated the principle that the Senate had no power to determine that a state legislator who was accepted by his own body could not vote in an election for U.S. senator.

In January 1898, the Senate awarded du Pont $1,855.45 for his expenses. At the conclusion of his case, he returned to his duties as president and general manager of the Wilmington and Northern Railroad. In 1906 the legislature elected him to the United States Senate, where he served until 1917. Du Pont died in 1926.

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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