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The Election Case of D. John Markey v. Herbert R. O'Conor of Maryland (1948)

Herbert O'Conor

Recount of ballots.

Petitions received: Dec. 10, Dec. 31, 1946
Referred to committee: Dec. 10, 1946 (Campaign); Jan. 6, 1947 (Rules)
Committee report: Jan. 31, 1947 (Campaign); May 13, 1948 (Rules)
Senate vote: May 20, 1948

Result: O'Conor retained seat

Democrat Herbert O'Conor rose through the ranks of Maryland politics from state's attorney to attorney general and governor, before seeking a seat in the United States Senate. On November 5, 1946, O'Conor defeated his Republican opponent, D. John Markey, by a surprisingly narrow margin of only 2,232 votes out of more than 470,000 cast.

Statement of the Case
On December 10, 1946, John Markey turned to the Special Committee to Investigate Senatorial Campaign Expenditures (1946) that had been established in April 1946, and asked for a prompt recount in Baltimore City and Montgomery County. Markey stressed that the matter was urgent because Maryland had no mechanism for an official recount and the two districts he named used voting machines, which officials were permitted to clear within weeks after the election. He also alleged that O'Conor's campaign had committed a number of campaign financing violations. The committee acceded to Markey's request only because the state was not in a position to carry out its own recount. It reviewed the votes in the two jurisdictions mentioned but found just the slightest variance from the official tally, affecting about 400 votes. The committee then indicated to Markey its willingness to survey an additional five counties that he designated as most likely to reveal tally irregularities. Markey selected Anne Arundel, Baltimore, Prince George's, St. Mary's, and Howard Counties.

Before the committee could proceed with this phase of the recount, the 80th Congress convened, and Herbert O'Conor presented his credentials. A Senate debate over the seating of Mississippi Senator Theodore G. Bilbo briefly delayed O'Conor's seating, but on January 4, 1947, he came forward and took his oath of office.

The previous day, January 3, 1947, John Markey filed a new petition requesting a full recount of the November Maryland election. Because the Committee on Privileges and Elections, which had handled previous contested election cases, was terminated at the beginning of the new Congress and its functions transferred to the Committee on Rules and Administration, the Senate on January 6, 1947, referred Markey's new petition, and with it the responsibility for further investigations into the Maryland election, to the Committee on Rules and Administration. The newly formed Subcommittee on Privileges and Elections set to work on a recount of the ballots from the five counties selected by Markey. Meanwhile, the special campaign expenditure committee concluded its portion of the investigation by filing a report on January 31, 1947.

Response of the Senate
Between January and April 1947, Markey continued to press the committee to conduct the recount quickly. His petitions implied that at any moment all the physical evidence of the 1946 election might vanish. By the end of May 1947, the committee had completed the recount in the five designated counties. In the tedious process, the ballot boxes and seals were examined for signs of tampering, the boxes opened, the ballots evaluated, recounted, and the results tabulated—precinct by precinct.

At the conclusion of the recount, O'Conor still held a lead of 1,465 votes. Markey protested, complaining about the Democratic state machine that had been entrenched since 1864, the failure of law enforcement personnel to halt abuses at the polls, and the O'Conor control over all state government. He appealed to the Senate to expand the recount to include the whole state, an approach he believed would be approved by the people of Maryland. The committee began recounting ballots from the remainder of the state in early June and finished its work in January 1948, finding that O'Conor retained a 1,624-vote majority.

On May 13, 1948, the Committee on Rules and Administration submitted a report prepared by its Subcommittee on Privileges and Elections. This report declared that Herbert O'Conor had been properly elected. On May 20, 1948, the Senate unanimously agreed that O'Conor should retain his seat.

Herbert O'Conor remained in the Senate until 1953 and then returned to the practice of law. He had been a prominent and popular public figure in Maryland, and his sudden death in 1960 plunged the state into mourning.

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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