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New York 23rd Looking to Extend its Fifteen Minutes of Fame

           According to The Hill newspaper, the special election race in New York’s 23rd congressional district is not quite over, as there remains a (remote) possibility that Conservative Party candidate Doug Hoffman could wind up with more votes than Democrat Bill Owens, who was seated in the House last week.   

            A state election official “said the state sent a letter to the House Clerk last week explaining that no winner had been determined in the 23rd district, and therefore the state had not certified the election. But the letter noted that Owens still led by about 3,000 votes, and that the special election was not contested — two factors that legally allowed Speaker Nancy Pelosi (D-Calif.) to swear in Owens on Friday.” 

            According to 1 Deschler’s Precedents § 3.5, “Where certificates of election have not been received, the House may by unanimous consent authorize the Speaker to administer the oath to Members-elect whose elections are not contested.”  Thus, while the Republicans presumably could have objected to Owens being sworn in, their failure to do so meant that he could be seated prior to the receipt of a certificate of election. 

            What happens if the final count should show Hoffman ahead of Owens?  The state election official says that “all ballots will be counted, and if the result changes, Owens will have to be removed.”  But I am not sure that the matter is so simple.  If Hoffman were to be certified as the winner, the House would still have to take action to remove Owens and seat Hoffman.  Absent unanimous consent to such action, the matter would presumably be referred to the Committee on House Administration to conduct an election contest, which could drag on for months. 

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