Page:Legal Processes for Contesting the Results of a Presidential Election.pdf/11

 Even where no contest in a state has occurred, the election results and returns from each state that have reached the Congress, under the procedures of the Electoral Count Act, would have been officially certified by state officers. The official “certificates of ascertainment” regarding the election would have already been transmitted by the governor of each state to the National Archives and Records Administration and to the Presiding Officer of the joint session. With reference to contests relating to other federal elections—federal congressional elections—or in other challenges to the credentials of Members-elect, the practice in Congress has been to place a clear burden of proof upon the objecting party to overcome the presumption of validity of an election that has already been officially certified by the proper state officials. Regarding their own congressional elections, the House of Representatives and the Senate have adopted a “but for” test, requiring the contestant to prove that “but for” the alleged fraud or irregularity the result of the election would have been different. It is likely that a similar standard as that applied in congressional precedents with respect to the burden of proof would at least influence Congress in the case of challenges to the results of a state-certified election of presidential electors.

Jack Maskell Legislative Attorney jmaskell@undefinedcrs.loc.gov, 7-6972 Rh