On April 16, 1864, Green Clay Smith presented a minority report in defense of Kitchen's eligibility. Smith noted other elections with lower percentages of voter turnout. He cited a lack of evidence that citizens were prevented from voting, and the difficulty in determining why citizens failed to vote. Finally, Smith reasoned that it was not moral to deny representation for the citizens who did vote under wartime conditions, and the majority of votes cast were for Kitchen. Dawes countered this report with statements Kitchen had given regarding entire counties that had been under rebel control and did not hold elections. Dawes also noted that while Berkeley County had legally been part of Virginia on the day of the election, the county was in the process of being transferred to West Virginia and its votes for Kitchen did not represent the majority of Virginia's 7th District. Therefore, the House passed the committee's resolution that Kitchen was not entitled to a seat, but also dismissed McKenzie's claim. Kitchen was afforded mileage and pay to the date of this resolution. The 7th District seat remained vacant for the duration of the 38th Congress.