U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

99–011 2011

112th Congress, 1st Session – – – – – – – – – – – – – House Document 112–44 

LETTER REGARDING CONTEST OF 36TH 

CONGRESSIONAL DISTRICT OF CALIFORNIA 

COMMUNICATION 

FROM

THE CLERK OF THE 

HOUSE OF REPRESENTATIVES 

TRANSMITTING

A LETTER REGARDING THE ELECTION FOR THE 36TH 

CONGRESSIONAL DISTRICT OF CALIFORNIA 

JULY 19, 2011.—Referred to the Committee on House Administration and 

ordered to be printed 


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OFFICE OF THE CLERK, 

HOUSE OF REPRESENTATIVES, 

Washington, DC, July 19, 2011. 

Hon. JOHN BOEHNER, 

The Speaker, House of Representatives 

Washington, DC. 

DEAR MR. SPEAKER: I have received the following correspondence 

regarding the election of Janice Hahn to fill the vacancy of the 36th 

congressional district for the state of California. The correspondent 

was not a candidate for office and affirms that he is not eligible to 

contest the election under the law. As such, I forward the correspondence to the House for its disposal. 

With best wishes, I am 

Sincerely, 

KAREN L. HAAS, 

Clerk. 

Enclosure. 


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JULY 18, 2011. 

Hon. KAREN L. HAAS, 

Clerk of the U.S. House of Representatives, 

Office of the Clerk, U.S. Capitol, Washington, DC. 

DEAR MS. HAAS, I am protesting the election of Janice Hahn in 

the July 12, 2011 Special Election to fill the vacancy for the ThirtySixth Congressional District of California. 

As I was not a candidate for this election, I am not eligible to 

challenge the election under the preferred method specified by the 

Federal Contested Elections Act. I am, however, eligible to protest 

the election according to Chapter 9 of Volume 2 of Deschler’s Precedents of the United States House of Representatives which provides 

for a protest filed by ‘‘any other person’’ to be referred to the Committee on House Administration for investigation. 

The House of Representatives has the constitutional authority to 

determine if a Member-elect is ‘‘duly elected.’’ See Powell v. McCormack (1969). Further, the U.S. Supreme Court made it clear that 

the House of Representatives is the final authority to make ‘‘an unconditional and final judgment’’ in determining questions regarding 

the elections of Members of that body, and that the courts have no 

role in reviewing any such determination. See Roudebush v. Hartke 

(1972). 

The election referenced above was not a valid election because it 

violated Article 1, Section 4, clause 1 of the Constitution: 

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by 

the Legislature thereof; but the Congress may at any time by 

Law make or alter such Regulations, except as to the Places 

of chusing Senators. 

The Manner of holding this special election was not prescribed 

by the California State Legislature, but rather through a ballot 

process which amended the State Constitution. Senate Bill 6 approved a ballot measure to be placed for consideration before the 

people of the State of California. This action did not prescribe the 

manner of elections. The people of the California, and not the legislature thereof; then prescribed the manner of holding elections by 

voting in favor of Proposition 14, which institutes a ‘‘top two primary system’’ within the California State Constitution. The merits 

and shortcomings of this particular system are irrelevant to the 

constitutional question being raised. The process by which this system was prescribed is a direct violation of both the letter and the 

spirit of the U.S. Constitution. 

Further, since Proposition 14 instituted the election process within the state constitution, the state legislature is not able to specify 

a different process, should it so choose. This is also a direct violation of both the letter and the spirit of the U.S. Constitution. Finally, choosing the manner of holding elections is not a duty that 


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can be delegated directly to the people by the state legislature. 

Such delegation would violate both the previously mentioned clause 

as well as Article 4, Section 4 of the Constitution: 

The United States shall guarantee to every State in this 

Union a Republican Form of Government, and shall protect 

each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be 

convened), against domestic Violence. 

As such, any election held under this process, which was not prescribed by the legislature of California, is not valid and the office 

should remain unfilled until such time as a constitutional election 

can take place. 

Respectfully, 

TONY DETORA. 

Æ 


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