[DOCID: f:hr178.110]
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110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-178
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DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE FIFTH CONGRESSIONAL DISTRICT OF FLORIDA
_______
June 6, 2007.--Referred to the House Calendar and ordered to be printed
_______
Mr. Brady of Pennsylvania, from the Committee on House Administration,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H. Res. 463]
The Committee on House Administration, having had under
consideration an original resolution dismissing the election
contest relating to the office of Representative from the Fifth
Congressional District of Florida, report the same to the House
with the recommendation that the resolution be agreed to.
DISMISSING THE ELECTION CONTEST IN THE FIFTH CONGRESSIONAL DISTRICT OF
FLORIDA
The Committee on House Administration, having had under
consideration an original resolution, dismissing the election
contest against Virginia ``Ginny'' Brown-Waite, reports the
same to the House with the recommendation that the resolution
be agreed to.
COMMITTEE ACTION
On, May 8, 2007, by voice vote, a quorum being present, the
Committee agreed to a motion to report the resolution favorably
to the House.
COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 3(c)(1) rule XIII of the Rules of
the House of Representatives, the Committee states that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
STATEMENT ON BUDGET AUTHORITY AND RELATED ITEMS
The resolution does not provide new budget authority, new
spending authority, new credit authority, or an increase or
decrease in revenues or tax expenditures. Thus, clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
the provisions of section 308(a)(1) of the Congressional Budget
Act of 1974 are not applicable.
STATEMENT OF FACTS
On January 3, 2007, John Russell (Contestant) filed a
Notice of Contest with the Clerk of the House of
Representatives captioned ``John Russell, Contestant, v.
Virginia `Ginny' Brown-Waite, Contestee'' pursuant to the
Federal Contested Elections Act (FCEA).\1\ Contestant was the
Democratic nominee for the seat in the Fifth Congressional
District of Florida on November 7, 2006. The other principal
candidate for the Fifth Congressional District was incumbent
Virginia ``Ginny'' Brown-Waite (Contestee). On November 20,
2006, the Florida Elections Canvassing Commission certified the
results: Contestee received 162,421 votes and Contestant
received 108,959 votes. The Florida Secretary of State Sue Cobb
issued the Certificate of Election certifying the contestee as
the winner of the Fifth Congressional District seat on November
22, 2006.
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\1\ 2 U.S.C. Sec. 381-96
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BASIS OF CONTEST
In the Notice of Contest, Contestant alleges that the
official election results for the Fifth Congressional District
of the State of Florida are incorrect because of purported
irregularities associated with the electronic voting machines
used the election. Specifically, Contestant avers that the
electronic voting machines did not record votes cast
accurately. In support of this argument, he asserts that the
electronic voting machines produced unreliable and incorrect
results based on a theory that these machines were hacked or
had their data tabulations altered by electronic means.
Contestant further contends that an accurate recount of the
votes cast can never be discerned because the electronic voting
machines used in this election were not equipped with a
verified voter paper audit trail.
STANDING
To have standing under the FCEA, a contestant must have
been a candidate for election to the House of Representatives
in the last preceding election and claim a right to the
contestee's seat.\2\ Contestant was the Democratic nominee and
his name appeared as a candidate for the Fifth Congressional
District on the official ballot for the November 7, 2006
election, thereby satisfying the standing requirement.
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\2\ 2 U.S.C. Sec. 382(a)
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TIMING/NOTICE
The Notice of Contest has been served upon Contestee and
filed with the Clerk of the House of Representatives on
December 20, 2006.
RESPONSE BY CONTESTEE
On January 17, 2007, Contestee filed a Motion to Dismiss
Contest of Election in response to Contestant's notice
contesting the results of the 2006 General Election for the
Twenty-First Congressional District of the State of Florida. In
her motion, Contestee seeks to have the election contest
dismissed based upon Contestant's failure to timely file the
Notice of Contest with the Clerk of the House of
Representatives pursuant to the FCEA filing requirements.
ANALYSIS
To survive a motion to dismiss, Contestant must proffer
allegations that, if proven, would have altered the election
outcome. In his Notice of Contest, Contestant presented the
Committee on House Administration (Committee) with allegations
that the electronic voting machines used in the election did
not record votes accurately. In support of his assertions,
Contestant relies on affidavits collected from voters in
Precinct 151 in Pasco County, Florida. The official certified
vote totals for Pasco County's 151 precinct show Contestant
receiving 35 votes and Contestee receiving 46 votes.
Contestant, after conducting his own canvass and affidavit
gathering process of the individuals who had cast ballots in
precinct 151, reveals that he received 41 votes while Contestee
received only 40 votes. Contestant believes that because these
6 votes show a discrepancy in the Election Day vote totals,
there is sufficient evidence to place in doubt the election
results for Florida's Fifth Congressional District. However,
Contestee was certified as the winner of the election by 53,462
votes, far exceeding the 6 vote differential proffered by
Contestant. The allegations cited by Contestant are
unsubstantiated speculation and do not constitute grounds
sufficient to change the result of the election. Even if
Contestant can prove the facts in support of his claim, he has
not provided evidence sufficient to entitle him to relief.
Contestant also alleges that the intent of the voters and
the vote tally could not be accurately discerned because the
electronic voting machines used in the instant election were
not equipped with a voter verified paper audit trail. In
particular, Contestant argues that only with a voter verified
paper audit trail: (1) could a voter determine whether the vote
in which he or she cast reflected the vote that was intended to
be cast; and (2) could election results be validated. The fact
that Contestant would have preferred that voters be given the
benefits of a verified paper audit trail adds no weight to his
claim.
In November 2006, numerous state and federal candidates
were elected on electronic voting machines that were not
equipped with a verified paper audit trail. For decades states
have used mechanical and electronic voting equipment that does
not provide for a paper audit trail. These systems have not
been demonstrated to be inherently unreliable. States by law
may choose to require a paper audit trail but the mere absence
of a paper trail is not a basis for setting aside an election.
A contestant's musing about the vulnerability of a voting
system to hacking or fraudulent manipulation does not form the
basis for a cognizable claim to the office. Such claims are in
essence no different than a claim that the ballots boxes could
have been stuffed in an election that used paper ballots. A
notice of contest must contain specific credible allegation(s)
of misconduct or irregularity in the election in order to
overcome the presumption of regularity.
CONCLUSION
For the reasons discussed above, the Committee therefore
concludes that this contest should be dismissed.
MINORITY VIEWS
While we agree with the majority that this election contest
is wholly without merit, and should be dismissed without
further delay, we submit these views because we believe that,
in addition to the numerous substantive defects of this
contest, its procedural failings are also fatal and sufficient
to warrant dismissal on their own. Pursuant to the FCEA, a
sufficient and timely Notice of Contest must be filed with the
Clerk of the House and served upon Contestee before the
Committee can proceed to review and make determinations
regarding the allegations and grounds of an election contest.
FCEA requires contestants to file their notice of contest with
the Clerk of the House within 30 days of the election results
having been declared. This rule allows members and their
constituents to know the date beyond which the election can no
longer be challenged.
Section 382(a) of the FCEA:
(a) Filing of notice.--Whoever, having been a
candidate for election in the last preceding election
and claiming a right to such office, intends to contest
the election of a Member of the House of
Representatives, shall, within thirty days after the
result of such election shall have been declared by the
officer or Board of Canvassers authorized by law to
declare such result, file with the Clerk and serve upon
the contestee written notice of his intention to
contest such election. (emphasis added)
Under Florida law, the Florida Elections Canvassing
Commission is the body authorized to declare all election
results. On November 20, 2006, the Florida Canvassing
Commission certified the results of the election for the Fifth
Congressional District and declared Virginia ``Ginny'' Brown-
Waite the winner, thereby triggering the 30 day time period for
filing an election contest with the House of Representatives.
Accordingly, anyone wishing to contest the results so declared
was obligated to do so by filing a contest with the Clerk on or
before December 20, 2006. Though Contestant's Notice of Contest
and certificate of service is dated December 20, 2006, this is
not the date it was filed.
The transaction log for the vendor that handles mail
delivery for the House of Representatives reveals that the
Notice of Contest was not received by the House until December
28, 2006. It was not received by, that is filed with, the Clerk
until January 3, 2007. This is outside of the 30-day window the
statute allows for filing. Simply mailing the contest within
the 30 day period does not constitute filing, and is not
sufficient to meet the statutorily imposed deadline.
While mailing does suffice for service of other kinds of
pleading, it does not suffice for the initial filing of the
contest. We believe the proper interpretation of FCEA requires
the document actually be in the possession of the Clerk within
the prescribed period. Section 382 clearly distinguishes
between filing and service--requiring that a notice of contest
be filed with the Clerk within 30 days and served on Contestee
within this time period. This distinction exists for a reason
and is reiterated in Section 384 which allows mailing within
the required period to suffice for other pleadings, but
explicitly states that that these modes of service are
acceptable for pleadings other than the notice of contest:
(a) Modes of service. Except for the notice of contest,
every paper required to be served upon the attorney
representing the party, or if her is not represented by an
attorney or upon a party shall be made:
* * * * * * *
(3) by mailing it addressed to the person to be served at
this residence or principal office. Service by mail is complete
upon mailing.
(b) Filings of papers with clerk. All papers subsequent
to the notice of contest required to be served upon the
opposing party shall be filed with the Clerk either before
service or within a reasonable time thereafter.
Obligating actually filing, as opposed to simply mailing,
the notice of contest within 30 days allows all Members to know
with certainty the date beyond which their elections can no
longer be challenged. To allow contests filed after this date
to be considered creates uncertainty for Members and extends
the period in which they can be challenged. It also contradicts
the plain language of the statute, and should not be permitted.
Vernon J. Ehlers.
Daniel E. Lungren.
Kevin McCarthy.
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