 In December 1863, Kitchen presented his credentials as a member-elect to the 38th United States Congress.When Congress convened on December 7, no representatives from Virginia were present at roll call.On December 23, 1863, runner-up Lewis McKenzie contested the election on the grounds that a majority (730) of Kitchen's votes had come from Berkeley County, Virginia, which simultaneously voted to join the new state of West Virginia on May 28, 1863.