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Court of Appeal, Fourth District, Division 3, California.

Art HOFFMANN, aka Arthur Hoffmann, Contestant and Appellant, v. Bruce W. SUMNER, et al., Defendants and Respondents.


Decided: October 10, 1986

Robert M. Levy, for contestant and appellant. Horton, Barbaro & Reilly, William O. Humphreys, Santa Ana, for defendants and respondents.

We are asked to determine whether a state court has jurisdiction to consider the validity of a state primary election for a federal House of Representatives position.   We conclude it does not and affirm.

This matter arises out of the June 3, 1986 primary election for the Democratic Party nomination for the office of United States Representative in the 40th Congressional District of California.   Appellant Hoffmann was the only candidate whose name appeared on the ballot.   Respondent Sumner entered the contest as a write-in candidate.

After counting the ballots, the Registrar of Voters declared Hoffmann the primary election winner.   However, Sumner requested a recount pursuant to Elections Code section 1714, et seq.   After the recount, Sumner was declared the winner, and the Secretary of State certified him as the official Democratic Party candidate.

On July 18, 1986, Hoffmann filed an affidavit, pursuant to Elections Code section 20300, et seq., contesting the election result.   A special proceeding pursuant to Election Code section 20335 was then commenced in superior court.

On August 22, Sumner moved to dismiss, arguing inter alia that the superior court lacked jurisdiction to act.   Sumner argued the House of Representatives has original and exclusive jurisdiction to adjudicate contested elections to that body.   The lower court agreed and dismissed the suit on that basis alone.

Hoffmann now appeals.

Article I, section 4 of the United States Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof ․”  Article 1, section 5, however, provides that “[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members ․”  It appears to be well settled that the final arbiter of Congressional elections is the House or Senate.  (Morgan v. United States (D.C.Cir.1986) 801 F.2d 445.)   However, in Roudebush v. Hartke (1972) 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1, the United States Supreme Court held that Article 1, section 5's reservation of final judicial power in Congress does not prevent the states from regulating Congressional elections under article 1, section 4.1

Thus we must determine when permissible state regulation of Congressional elections ends and impermissible state determination of Congressional election outcomes begins.   We are strongly guided by our state Supreme Court's decision in In re McGee (1951) 36 Cal.2d 592, 226 P.2d 1.   In McGee, the defendant sought the office of State Assemblyman.   He won the nominations for both Republican and Democratic tickets in the June 1950 primary.   Plaintiff, the unsuccessful opponent, contested the election under former Elections Code section 8600 (the predecessor to current Elections Code 20300).   Defendant asserted that the court lacked jurisdiction to hear the case, relying on former California Constitution, article IV, section 7:  “Each house (of the Legislature) shall ․ judge ․ the qualifications, elections and returns of its members.”  (See current Cal. Const., art. IV, § 5.)   In analyzing the proper application of article IV, section 7, the court provided a lengthy analysis of the similar federal language in article 1, section 5.   Quoting extensively from State v. Zimmerman, 249 Wis. 237, 24 N.W.2d 504,2 the court stated that “ ‘Under United States v. Classic, supra [313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368], and Smith v. Allwright, supra [321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987], the same rules of law are applicable to a primary for the nomination for United States senator that are applicable to an election for United States senator.  [¶ ]  It is well established that under the provisions of Art. I, sec. 5, courts have no jurisdiction to judge the returns and election of United States senators․' ”  (In re McGee, supra, 36 Cal.2d at p. 596, 226 P.2d 1.)

This language from McGee is, admittedly, dicta since it involved our state Constitution as applied to a state legislative office.   However, we find the McGee opinion's unequivocal endorsement of the holding in Zimmerman to be persuasive.3

We also note the distinction between a judicial determination and a ministerial one.   Ministerial acts, such as a recount, are within the state's jurisdiction under Article 1, section 4, as affirmed in Roudebush v. Hartke, supra, 405 U.S. 15, 92 S.Ct. 804.   A state may not, however, attempt to make a judicial determination of a candidate's election or qualifications, as Elections Code section 20300 et seq. permits.  (In re McGee, supra, 36 Cal.2d at pp. 595–597, 226 P.2d 1.)   Thus, the availability of Elections Code section 20300 et seq. is, by necessity, limited under McGee to primary contests for offices other than the state and federal Legislatures.

We reach this result even though Congress, in its 1969 amendment to 2 United States Code section 381(a), excludes “primary elections” from the category of “elections” for which it will resolve a contest.4  Thus under existing legislation, Congress will not review a contested primary election.5  Nevertheless, under article 1, section 5 of the U.S. Constitution the jurisdiction to determine the outcome of a contested Congressional primary election still lies with Congress.   Congress' determination to exclude primary election contests from 2 United States Code section 381(a) contains no express delegation of jurisdiction over such contests to the various states and we simply cannot presume such an intent.   If a void exists as a result of Congress' most recent amendments it must be filled by Congress not the states.6  Though we need not decide whether Congress could delegate that authority, there is obviously a grave question as to whether such a delegation would violate Art. 1, Sect. 5 of the U.S. Constitution.

The judgment of the superior court is affirmed.   Respondent shall recover his costs on appeal.


1.   As the Supreme Court explained in Roudebush, “Unless Congress acts, Art. I, § 4, empowers the States to regulate the conduct of senatorial elections.   This Court has recognized the breadth of those powers:  ‘It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns;  in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved.’   [Citation.]  [¶] Indiana has found, along with many other States, that one procedure necessary to guard against irregularity and error in the tabulation of votes is the availability of a recount․A recount is an integral part of the Indiana electoral process and is within the ambit of the broad powers delegated to the States by Art. I, § 4.  [¶] It is true that a State's verification of the accuracy of election results pursuant to its Art. I, § 4, powers is not totally separable from the Senate's power to judge elections and returns.   But a recount can be said to ‘usurp’ the Senate's function only if it frustrates the Senate's ability to make an independent final judgment.   A recount does not prevent the Senate from independently evaluating the election any more than the initial count does.   The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.  [¶ ] It would be no more than speculation to assume that the Indiana recount procedure would impair such an independent evaluation by the Senate.”  (Fns. omitted.)  (Roudebush v. Hartke, supra, 405 U.S. at pp. 24–26, 92 S.Ct. at 810–811.)

2.   Zimmerman dealt with a contested Wisconsin primary election for the 1946 Republican nomination for the U.S. Senate.   The Wisconsin Supreme Court held that states lack jurisdiction to make judicial determinations which decide the elections or qualifications of a Senator.   The court found that since a primary election is an integral part of the process by which the Senator will be elected, only the Senate could decide the issue.

3.   United States v. Classic (1941) 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 dealt with a primary election, wherein it was claimed the state had violated voters federal civil rights.   The court held when a primary election becomes part of the process for choosing elected officials, it too falls under the same tests used to determine civil rights abridgements in general elections.   Hoffman argues the Classic holding should apply to only civil rights violations and not election contests as before us.   However, our Supreme Court in McGee clearly interprets Classic to place primary elections under the ambit of article 1, section 5.

4.   Section 381, subsection (a) provides:  “[t]he term ‘election’ means an official general or special election to choose a Representative in or Resident Commissioner to the Congress of the United States, but does not include a primary election․”

5.   Prior to the 1969 amendments, no distinction was made between general and primary elections.  (See U.S.C., Title 2, Chapter 7 (1958 edition);  Revised Statutes of the United States, Title II, Chapter Eight, pp. 18–21.)

6.   Hoffman argues that the California statutory scheme regarding primary elections was intended to fill the void created by the passage of 2 U.S.C. 381(a).   However, California statutes were adopted in 1913 long before “primary elections” were excluded from the United States Code.  (See Stats. 1949, ch. 690, § 28, p. 1409.)

TROTTER, Presiding Justice.

CROSBY and STANIFORTH,* JJ., concur.

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