[DOCID: f:hr885.110]
From the House Reports Online via GPO Access
[wais.access.gpo.gov]
110th Congress
2d Session HOUSE OF REPRESENTATIVES Report
110-885
_______________________________________________________________________
House Calendar No. 277
FINAL REPORT AND SUMMARY OF ACTIVITIES
__________
R E P O R T
of the
SELECT COMMITTEE TO INVESTIGATE THE VOTING IRREGULARITIES
OF AUGUST 2, 2007
U.S. HOUSE OF REPRESENTATIVES
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
September 25, 2008--Referred to the House Calendar and ordered to be
printed
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800
Fax: (202) 512ÿ092104 Mail: Stop IDCC, Washington, DC 20402ÿ090001
SELECT COMMITTEE TO INVESTIGATE THE
VOTING IRREGULARITIES OF AUGUST 2, 2007
William D. Delahunt, Massachusetts, Chairman
Artur Davis, Alabama Mike Pence, Indiana, Ranking
Stephanie Herseth Sandlin, South Member
Dakota Steven C. LaTourette, Ohio
Kenny C. Hulshof, Missouri
------
Select Committee Staff and Outside Counsel
majority staff
Davida Walsh, Staff Director
Muftiah McCartin, General Counsel
Chanelle Hardy, Professional Staff
Russ Levsen, Professional Staff
Zuraya Tapia, Clerk
minority staff
Josh Pitcock, Republican Staff Director
Hugh Nathanial Halpern, Republican General Counsel
Joe Guzzo, Republican Professional Staff
Aaron Smith, Republican Professional Staff
majority outside counsel
Thomas J. Spulak, Esq. and George Crawford
King and Spalding, LLP
minority outside counsel
Mark Paoletta, Esq. and Andrew Snowdon, Esq.
Dickstein Shapiro, LLC
CONTENTS
----------
Page
Part I--Final Report............................................. 1
Summary of the Select Committee's Investigation................ 1
Voting by Electronic Device.................................... 3
The Events Surrounding Roll Call 814........................... 10
Findings and Analysis.......................................... 16
Recommendations................................................ 22
Part II--Summary of Activities................................... 29
Legislative Activities......................................... 29
The Select Committee's Oversight Plan.......................... 29
Oversight Activities........................................... 31
Publications................................................... 32
Part III--Committee Consideration................................ 35
Part IV--Appendix................................................ 37
House Calendar No. 277
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-885
======================================================================
_____
FINAL REPORT AND SUMMARY OF ACTIVITIES
_______
September 25, 2008.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Delahunt, from the Select Committee to Investigate the Voting
Irregularities of August 2, 2007, submitted the following
R E P O R T
PART I--FINAL REPORT
The Select Committee to Investigate the Voting
Irregularities of August 2, 2007 (the ``Select Committee'') was
created on August 3, 2007, by House Resolution 611 to
investigate the circumstances surrounding the record vote
requested by the gentleman from California (Mr. Lewis) on the
motion to recommit H.R. 3161, including the Chair's ruling; to
report to the House a final report regarding findings of fact
on the actions of any Members, officers, or employees of the
House during the vote in question; and to recommend changes to
the rules and procedures of the House of Representatives to
protect the voting rights of all Members.
Pursuant to that resolution, the Select Committee hereby
submits its final report, including its finding of facts,
analysis, and recommendations.
Summary of the Select Committee's Investigation
On September 5, 2007, the appointments to the Select
Committee made by the Speaker and the Minority Leader pursuant
to H. Res. 611\1\ were published in the Congressional Record.
The Speaker appointed Mr. Delahunt and designated him Chairman
of the Select Committee. The Speaker also appointed Mr. Davis
of Alabama and Ms. Herseth Sandlin. The Minority Leader
appointed Mr. Pence and designated him Ranking Member of the
Select Committee. The Minority Leader also appointed Mr.
LaTourette and Mr. Hulshof.
---------------------------------------------------------------------------
\1\H. Res. 611 states, in pertinent part, ``The select committee
shall be comprised of 6 Members, of which 3 Members shall be appointed
by the Speaker and 3 by the Minority Leader.''
---------------------------------------------------------------------------
On September 27, 2007, the Select Committee, pursuant to
its mandate set forth in H. Res. 611, issued an interim report
to the House of Representatives. The interim report included
the oversight plan of the Select Committee, which described the
anticipated course of the investigation.
The Select Committee held a series of briefings and
hearings designed to inform the members of the Select Committee
of the mechanics of conducting a record vote on the House
floor, the Electronic Voting System (EVS), and the precedents
and procedures relevant to the voting process.\2\ The first of
these hearings took place on September 27, 2007. That hearing
gave the members an opportunity to understand the overall
process of conducting a record vote. It also gave them an
opportunity to understand the data and documents that are
typically compiled during a record vote and that the Select
Committee expected to examine during the course of its inquiry.
The Clerk and her staff appeared as witnesses.
---------------------------------------------------------------------------
\2\See part II of this report for a full list of the Select
Committee's activities.
---------------------------------------------------------------------------
On October 18, 2007, the Select Committee held a member
briefing, which consisted of a ``walkthrough'' of the
Electronic Voting System on the House floor. The briefing was
conducted by the Clerk, her staff, and the Parliamentarian.
On October 25, 2007, the Select Committee held a hearing on
Rules, Precedents, Custom and Practice regarding voting in the
House of Representatives. Former House Parliamentarian Charles
W. Johnson and Chief Tally Clerk Mark O'Sullivan appeared as
witnesses.
The Select Committee conducted a thorough investigation of
Roll Call 814. At the outset, the Select Committee sent a
``Dear Colleague'' to all Members of the House of
Representatives inviting any and all Members who were present
in the chamber the night of August 2, 2007, and who had direct,
firsthand, personal knowledge, to share that information with
the Select Committee if they wished. Ultimately, the Select
Committee interviewed four Members and seventeen staff members
of the House. The staff interviews included staff from the
Office of the Clerk, the Office of the Parliamentarian, and
Minority and Majority Leadership Offices. The Members
interviewed were Messrs. Hoyer, Boehner, Blunt, and McNulty.
The Select Committee reviewed over 5,000 pages of documents
related to Roll Call 814. It closed its investigation by
conducting two days of public hearings to receive testimony
regarding Roll Call 814 from important witnesses.
The Select Committee, on a bipartisan basis, made findings
and recommendations discussed later in this report. The
material which follows represents countless hours of research,
analysis, and discussion. The Select Committee's investigation
would have been far more difficult without the cooperation and
assistance of a number of offices and individuals. Chief among
those the Select Committee would like to acknowledge are the
offices of the Clerk and the Parliamentarian. The Select
Committee also extends its appreciation to former
Parliamentarian Charles Johnson and CRS for their advice and
consultation throughout the investigation and in the
development of its recommendations.
Voting by Electronic Device\*\
---------------------------------------------------------------------------
\*\The material in this section of the report is derived from
multiple sources, including
John V. Sullivan, Constitution, Jefferson's Manual, and Rules of the
House of Representatives of the United States, 110th Congress, H. Doc.
109-157, 2007 (hereinafter ``Manual''); Member Briefing on Voting in
the House of Representatives--The Rostrum and the Electronic Voting
System: A ``Walkthrough'' by the Clerk of the House Lorraine C. Miller,
Oct. 18, 2007; Michael L. Koempel & Judy Schneider, CRS Memorandum to
Select Committee Chairman, Concordance of Questions and Answers from
Hearings of the Select Committee to Investigate the Voting
Irregularities of August 2, 2007, Dec. 2007; Clerk's Briefing to House
Committee on House Administration, Aug. 16, 2007 CLERK 467-494; the
hearings held by the Select Committee; interviews conducted by the
Select Committee and its staff; and other materials cited in the
appendix IV of this report.
---------------------------------------------------------------------------
Overview
The Electronic Voting System (EVS) was installed in the
House chamber in 1972 pursuant to the Legislative
Reorganization Act of 1970 and was first used on January 23,
1973.\3\ Under clause 2(a) of rule XX, voting by electronic
device is the preferred method for conducting a record vote:
``Unless the Speaker directs otherwise, the Clerk shall conduct
a record vote or quorum call by electronic device.''
---------------------------------------------------------------------------
\3\The permissive use of an EVS was incorporated in the Legislative
Reorganization Act of 1970 (84 Stat. 1140, 1157) and was made part of
the standing Rules of the House in the 92d Congress. (Manual 1014.)
---------------------------------------------------------------------------
The current EVS was installed in January, 2004, and it
represents the fourth major upgrade of the EVS since its
inception in 1972. The main hardware is located in the Rayburn
House Office Building and is connected to the House floor by a
secure line. There are 47 EVS input devices on the House floor,
including a primary terminal that is located on the rostrum and
controlled by the seated tally clerk. The remaining 46 devices
are voting stations located behind the Members seats. In
addition to these input devices, there are several terminals on
the House floor that allow Members and staff to view the
progress of the vote and the results in real time. These are
located at the leadership tables and in the rear of the chamber
and do not allow input into the system. There is also a
secondary EVS terminal in the Office of Legislative Operations
in the Capitol.
A vote is conducted by three tally clerks. There is a
``seated'' tally clerk who operates the primary terminal,\4\ a
``standing'' tally clerk who stands on the lowest level of the
rostrum and who assists the seated tally clerk, and a tally
clerk who monitors the vote at the secondary EVS terminal in
the Office of Legislative Operations.
---------------------------------------------------------------------------
\4\The seated tally clerk sits at the primary EVS terminal on the
Speaker's Dais. Here, the tally clerk can initiate and terminate a
vote, illuminate and release the display boards, begin the clock that
tracks the minimum amount of time for the vote, open and close the
voting stations, identify the vote (e.g. suspension of the rules or
agreeing to the amendment), and process and verify well cards for cast
votes or for changed votes.
---------------------------------------------------------------------------
Members may cast or change their votes by inserting their
personal voting card into one of the 46 voting machines and
pushing one of three buttons--a green button for ``yea,'' a red
button for ``nay,'' or an amber button for ``present.'' In
addition to voting at an electronic voting station, Members may
cast their votes manually in the area in front of the rostrum
referred to as the ``well.'' To do so, Members retrieve an
appropriately colored card (called a ``well card'') from the
table in the well. On the card, they write their name,
district, and the State or territory they represent and turn it
in to the standing tally clerk. The standing tally clerk
verifies the identifying information,\5\ record the Roll Call
number on the card, and hands it to the seated tally clerk, who
enters the vote into the EVS.
---------------------------------------------------------------------------
\5\ The standing tally clerk may add identifying information to a
well card where the information provided by the Member may still be
ambiguous, for example, where the voting Member shares the same last
name as other Members, the tally clerk may add the voting Member's
first name or initial to provide clarity.
---------------------------------------------------------------------------
There are display boards above the east and the west doors
of the chamber, referred to as ``electronic summary displays.''
These display the time remaining in the vote and the running
tally. There is another display board behind the Chair, which
displays the vote of each Member.
Members may verify their votes at any voting station or by
checking the display board above the rostrum. As votes are cast
at the voting stations, the EVS automatically records each vote
and updates the display boards behind the Chair and above the
east and west doors. The system refreshes every 1\1/2\ seconds
and appears to be virtually instantaneous to most observers. A
vote cast or changed by well card will not be reflected on the
display boards until after the seated tally clerk has entered
it in the EVS terminal and the computer refreshes the displays.
Although the goal of the clerks is to expeditiously enter a
Member's well vote and have it displayed as quickly as
possible, the process inevitably takes longer than when a
Member votes electronically. Sometimes the seated tally clerk
enters and verifies each well card into the EVS as the standing
tally clerk hands over the card--which can take from 2 to 10
seconds. At other times, particularly when a number of Members
are voting in the well, the seated tally clerk will enter and
verify them as a batch--a few seconds per card can quickly add
up to several minutes. Consequently, depending on the speed and
sequence of actions taken by the seated tally clerk, well votes
will take a varying amount of time to be reflected on the
summary board.
For purposes of the vote total, although a Member may cast
and change his or her vote any number of times during a record
vote, each Member has only one vote--the last one cast.
Nevertheless, all EVS transactions are captured by the EVS and
included in the transaction log. The EVS was designed to allow
Members to change their votes at the voting stations so long as
the voting stations are open. However, in 1976, Speaker Albert
announced changes to the voting policy, still in effect, that
allows changes at voting stations to occur only during the
first 10 minutes of a 15-minute vote. To change a vote after
the first 10 minutes, a Member must vote in the well by well
card, unless the Member voted present, in which case that
Member may change his or her vote until the voting stations are
closed.\6\ During a 5-minute vote, Members may change their
vote at any station throughout the duration of the vote.\7\
---------------------------------------------------------------------------
\6\Speaker Albert, Mar. 22, 1976, p. 7394 (Manual, 1014).
\7\This policy was announced by Speaker O'Neill. Jan. 4, 1977, pp.
53-70 (Manual, 1014).
---------------------------------------------------------------------------
The seated tally clerk keeps a handwritten list of Members
who change, and how they change, their votes after the first 10
minutes. This list is given to the reading clerk to announce
when the Chair inquires of Members whether anyone wishes to
vote or to change their vote. If, during the same record vote,
a Member submits a subsequent well card (for example, to change
a vote) the new well card is numbered and stapled to the
previous well card cast by the Member.\8\ If that well card is
submitted during the last 5 minutes of 15-minute vote or after
the Chair inquires for changes, the subsequent well vote is
announced by the reading clerk, even if it is a duplicate (in
which case, the reading clerk would announce how that Member
had previously voted).
---------------------------------------------------------------------------
\8\The seated tally clerk may verify his or her recording of well
cards by checking the cards against a screen display on the monitor or
by calling by phone the Legislative Operations Office staff to confirm
the well cards against a printout from the EVS made by that office.
---------------------------------------------------------------------------
Members are responsible during electronic votes for
verifying that their votes are recorded accurately.\9\ This is
particularly important because the precedents presume the
technical accuracy of the EVS; and, thus, the Speaker declines
to entertain requests to correct the Journal and Record on
votes taken by electronic device.\10\
---------------------------------------------------------------------------
\9\This policy was announced in 1973 by Speaker Albert and has been
adopted by all subsequent Speakers. Manual, 1017.
\10\Id.
---------------------------------------------------------------------------
Data for each vote taken by electronic device is collected
in several files: transaction log, checkpoint file, vote
journal log, and hardware and software error logs.\11\ The
transaction log records all voting transactions by each Member
during a particular vote, including every vote cast, the time
each vote is cast, any changes, and the manner in which the
vote is cast (i.e. from a voting terminal or by well card) and
allows for the generation of a detailed report. The checkpoint
file is written at the conclusion of the record vote and
contains a snapshot of the vote data at the end of the vote.
The vote journal log records when a vote begins and ends and
when voting stations are closed, opened, or reopened. The
hardware and software error logs record any errors which occur
during the execution of the record vote.
---------------------------------------------------------------------------
\11\These files are only available internally within the House and
not to the public.
---------------------------------------------------------------------------
Closing an Electronic Vote
Clause 2(a) of rule XX sets the minimum time for an
electronic vote at 15 minutes, except in those circumstances
where House rules permit the Speaker or the Chairman of the
Committee of the Whole to reduce the minimum time to 5
minutes--such as clause 8 or 9 of rule XX\12\ or clause 6 of
rule XVIII.\13\
---------------------------------------------------------------------------
\12\Clause 8 of rule XX allows the Speaker to postpone certain
questions and to ``cluster'' them for voting at a designated time or
place in the legislative schedule. These questions include such
questions as approval of the Journal, passing a bill or joint
resolution; adopting a resolution or concurrent resolution; and
agreeing to a conference report or a motion to instruct. Clause 8(c)
provides that ``The Speaker may reduce to five minutes the minimum time
for electronic voting on a question postponed under this clause or on a
question incidental thereto, that follows another electronic vote
without intervening business, so long as the minimum time for
electronic voting on the first in any series of questions is 15
minutes.'' Clause 9 provides that ``The Speaker may reduce to five
minutes the minimum time for electronic voting on any question arising
without intervening business after an electronic vote on another
question if notice of possible five-minute voting for a given series of
votes was issued before the preceding electronic vote.''
\13\Clause 6 of rule XVIII permits the Chairman of the Committee of
the Whole to reduce to 5 minutes (1) a vote that follows a quorum call;
(2) votes on pending amendments provided the first vote is 15 minutes;
and (3) votes on postponed questions provided the first vote in the
series is a 15-minute vote.
---------------------------------------------------------------------------
The technical process for closing an electronic vote in the
EVS can be viewed as a five-step process. Each step is
generally triggered by statements uttered by the Chair and
requires the seated tally clerk to select an option on the
primary computer to effect each step. In his testimony before
the Select Committee, Chief Tally Clerk Mark O'Sullivan stated,
``The whole procedure of conducting votes and the closing of
votes is almost the same since I have been here,'' although
``each vote has little permutations.''\14\
---------------------------------------------------------------------------
\14\Select Committee Hearing, ``Voting in the House of
Representatives--Rules, Procedures, Precedents, Customs, and
Practice.'' Oct. 25, 2008 p. 32.
---------------------------------------------------------------------------
Closing the voting stations. The first step of the process
is called ``closing the voting stations.'' This typically
occurs when the Chair asks whether any Members wish to vote or
change their votes or after the first 10 minutes of a 15-minute
vote. This action signals the seated tally clerk to close the
46 voting stations on the back of the chairs in the chamber to
further input, requiring all additional votes or changes to be
cast by well card. However, the seated tally clerk may exercise
some discretion in deciding when to close the voting stations.
Though the typical procedure is to close the voting stations
when the Chair utters the phrase ``do any Members wish to vote
or change their vote,'' the clerks explained to the Select
Committee that if the tally clerk perceives Members are still
seeking to vote, and it would be more efficient to leave the
stations open rather than requiring Members to vote in the well
by well card, the tally clerk may leave the stations open, or
may reopen the stations after they have been closed. This is
also the point where a handwritten list of all Members who
changed their votes, and how they changed, after the first 10
minutes of a 15-minute vote (which is prepared by the seated
tally clerk) is announced by the reading clerk (e.g. Mr. Davis,
off ``aye,'' on ``no''). Any votes or changes submitted by
Members after this point are announced immediately upon being
entered into the EVS; no further list is kept.
Terminating the vote. The second step of the process is
called ``terminating the vote.'' A vote is terminated at the
direction of the Chair, when there are no Members in the well
attempting to cast their votes, the seated tally clerk has
finished entering the data from all of the well cards
submitted, and when the EVS has ``absorbed'' all votes cast
(i.e. the EVS has processed and refreshed the displays to
reflect that data). At that time, the seated tally clerk will
indicate to the standing tally clerk that the tally displayed
above the chamber's doors is reliable and selects the option on
the EVS terminal to terminate the vote. The standing tally
clerk prepares the ``tally slip'' to hand to the
Parliamentarian, who in turn hands it to the Chair to include
in the Chair's announcement of the result of the vote.\15\
---------------------------------------------------------------------------
\15\The ``tally slip'' is a small slip of white paper on which the
tally clerk writes down for the Chair the vote tally. The tally slip is
not given to the Chair until the tally clerks confirm that the voting
stations are closed and that all well votes have been properly
recorded. Multiple tally slips can be filled out by the standing tally
clerk and passed up through the Parliamentarian to the presiding
officer. This typically occurs if Members present themselves in the
chamber or the well, indicating their desire to vote or change their
vote after step 1 but before step 5, which is the final release of the
displays.
---------------------------------------------------------------------------
Setting the vote to final. The third step, ``setting the
vote to final,'' causes the word ``FINAL'' to appear on the
summary display boards. Votes may still be entered after the
Clerk has selected this option in the EVS. Neither the
selection of this option in the EVS, nor the display of the
word ``FINAL'' on the display board, bears parliamentary
significance. This step typically occurs when the Chair is
reading the tally slip.
Releasing the Displays. The fourth step, ``releasing the
displays,'' typically occurs as the Chair completes reading the
vote tally and states an unequivocal announcement of result.
This is the first step in releasing the EVS.
House Parliamentarian John Sullivan explained what
constitutes an unequivocal announcement of result: ``Again, it
is totality of the circumstances. I can recall on occasion when
a Chair uttered what in a transcript would look like an
unequivocal statement of result, but it is just because the
last syllable was coming out of his mouth just as he wanted to
pull up because a Member was running down the aisle. That vote
was taken because 700,000 Americans wanted it to be recorded. *
* * We rationalize that the Chair hadn't put the period on the
end of the sentence in that circumstance. But usually if the
Chair says, `The amendment is adopted,' that is the unequivocal
statement of the result. `The bill is passed.' When he utters
that sentence, that should be the end of the vote.''\16\
---------------------------------------------------------------------------
\16\ Member Briefing on Voting in the House of Representatives--The
Rostrum and the Electronic Voting System: A ``Walkthrough'' by the
Clerk of the House Lorraine C. Miller. Briefing. Oct. 18, 2007, p. 18.
---------------------------------------------------------------------------
Verifying the release. Fifth and finally, the EVS asks for
``verification of the release.'' The first four steps may be
reversed. However, once the fifth step is completed, the vote
is closed. At this point, the EVS is shut down, the display
boards are cleared, and the vote may not be reopened.
After the vote is closed, the tally clerks on the rostrum
proof the well card votes with the tally clerk located in the
Office of Legislative Operations. After this proof has been
completed, the vote totals are released to the Clerk's public
website.
The Select Committee heard testimony that the practice of
tally clerks in closing down a vote varies slightly among
specific clerks. Some of the tally clerks actually wait until
the Chair ``gavels down the vote'' and then ``clicks through
those four or five steps just simultaneously.'' Furthermore,
some of the newer clerks may not be as fast as some of the more
experienced ones.
On occasion (such as when a vote must be restarted or there
is a technical difficulty that would require the vote to be
taken by call of the roll), the tally clerk may opt to
``abort'' a vote; that is, cancel a vote that is in progress.
As the Select Committee learned, this is very rare.
The Respective Roles of the Chair, the Clerk, and the Parliamentarian
in the Direction and Conduct of a Vote by Electronic Device
Clause 2(a) of rule XX sets forth the respective roles of
those involved in a record vote. It states:
Unless the Speaker directs otherwise, the Clerk shall
conduct a record vote or quorum call by electronic
device. In such a case the Clerk shall enter on the
Journal and publish in the Congressional Record, in
alphabetical order in each category, the names of
Members recorded as voting in the affirmative, the
names of Members recorded as voting in the negative,
and the names of Members answering present as if they
had been called in the manner provided in clause 3.
This rule is understood to mean that a vote is conducted by
the tally clerks at the direction of the Chair.
The Parliamentarian's role is to assist the Chair in
comporting with the rules, precedents, and practices of the
House. As such, the Parliamentarian may offer guidance and
recommendations to the presiding officer on the decision of
when to close a vote. The Parliamentarian may also, as an agent
of the Chair, advise the tally clerk on the proper conduct of a
vote.
There have long, if not always been, two tally clerks, who
have traditionally been viewed as nonpartisan ``agents of the
Chair.'' Although the tally clerks are specifically referenced
in the Rules of the House, much of their role and
responsibilities have been established through custom, usage,
and tradition. Until 1973, and for 184 years prior, the two
tally clerks processed roll call votes manually. The role of
the tally clerks was not perceived to change once the
electronic voting system was adopted, at least not
significantly enough to warrant a formal rules change or
codification. They were and continue to be appointed solely to
do the business of conducting a vote and to ensure that Members
are recorded accurately.
The seated tally clerk is charged with the technical
aspects of initiation and termination of the EVS, as well as
the operation of the rostrum EVS terminal throughout a vote. In
most cases, the seated tally clerk initiates the EVS when the
Chair states, ``The yeas and nays are ordered. Members will
record their vote by electronic device.''
In the normal course of a vote, the tally clerks will take
instruction from the Chair by listening to certain ``cues.''
However, upon occasion, the tally clerk may interject a
suggestion. For example, an inquiry of the Chair whether any
Member wishes to vote or to change their vote is a cue to the
tally clerk to turn off the 46 voting stations available to
Members, requiring Members who still need to vote to come to
the well. In the example given here, the tally clerk may
suggest directly to the Chair or through the Parliamentarian
that, if there are a number of Members who have not yet voted,
the voting stations be left open or reopened as an efficient
way to process a large number of votes. The tally clerks
ultimately provide the Chair a vote tally that the Clerk has
determined accurately reflects each vote cast. Under the long-
standing practices and traditions of the House, this
determination is communicated to the Chair via the tally slip.
Under clause 2(a) of rule XX, the Chair directs, or
controls, the vote. As stated by Charles Johnson, ``[T]he
Chair, in his or her nonpartisan capacity, conducts the vote,
and it can't be any other way.''\17\ The Chair's control of the
vote is exercised within the applicable rules, precedents, and
best practices in consultation with the Parliamentarian.
---------------------------------------------------------------------------
\17\Hearing, Oct. 25, 2008, p. 11.
---------------------------------------------------------------------------
Once the minimum time for a vote has expired, the Chair
determines when to close the vote.\18\ However, once the voting
system has been released after the completion of the fifth and
final step performed by the seated tally clerk, the Chair no
longer has the discretion to permit additional votes--the EVS
cannot return to a previous vote.
---------------------------------------------------------------------------
\18\With respect to the amount of time a vote may be held open, the
precedents of the House dictate that ``on a call of the House, or a
vote, conducted by electronic device, Members are permitted a minimum
of 15 minutes to respond, but it is within the discretion of the Chair,
following the expiration of 15 minutes, to allow additional time for
Members to record their presence, or vote, before announcing the
result.'' Manual, 1014.
---------------------------------------------------------------------------
The Chair's determination of when to close a vote has been
described by Charles Johnson as based on the ``totality of the
circumstances.'' Of particular importance to the Chair is the
enfranchisement of Members. The Select Committee heard
testimony regarding the traditional view of the Speaker that it
is the Chair's obligation to protect the right of a Member to
vote because each vote cast is on behalf of the approximately
600,000 citizens that Member represents. However, the Chair has
a dual obligation to conduct the vote efficiently. The Chair's
obligation to protect a Member's right to vote is not so great
as to require the Chair to hold open a vote indefinitely.\19\
Indeed, since the 103rd Congress, the Speaker has announced
that each occupant of the Chair would have the Speaker's full
support in striving to close each electronic vote at the
earliest opportunity and that Members should not rely on
signals relayed from outside the chamber to assume that votes
will be held open until they arrive.\20\
---------------------------------------------------------------------------
\19\``Because the Chair has the discretion to close the vote and to
announce the result at any time after 15 minutes have elapsed, those
precedents guaranteeing Members in the chamber the right to have their
votes recorded even if the Chair has announced the result (e.g., V,
6064, 6065, VIII, 2143), which predate the use of an electronic voting
system, do not require the Chair to hold open indefinitely a vote taken
by electronic device.'' (Manual, 1014).
\20\Manual, 1014.
---------------------------------------------------------------------------
The dual--and often conflicting--obligation of
enfranchisement and efficiency has resulted in the practice of
``multiple tally slips.'' It is not uncommon for the Chair,
having almost completed the announcement of a vote from a tally
slip, to permit a tardy Member who has just entered the chamber
to cast a vote. In that case, the tally clerk prepares a new
tally slip reflecting the additional vote. As long as the EVS
has not been released, it has been the practice of the Chair to
permit latecomers to cast a vote. Often, as the tally clerk
prepares a new tally slip, another latecomer enters the Chamber
and is afforded the same courtesy.
There is one rule that impacts the discretion of the Chair
as to when a vote may be closed after the minimum time has
expired. That rule was adopted on January 5, 2007, as a new
sentence to clause 2(a) of rule XX, which states: ``A record
vote shall not be held open for the sole purpose of reversing
the outcome of such vote.''\21\ The Chair has held that this
rule sets a standard that may be challenged not by a point of
order during the vote but by the offering of resolution
alleging a violation of the rule as a question of the
privileges of the House under rule IX after the vote has been
announced.\22\
---------------------------------------------------------------------------
\21\This discretion of the Chair and the arguably unresolved
application and interpretation of the new sentence in 2(a) has been the
source of controversy in the House chamber throughout the 110th
Congress. Responses to numerous parliamentary inquiries and questions
of privilege regarding the application of this provision have been
recorded in the House Rules and Manual as follows: ``In response to a
parliamentary inquiry concerning the rule on holding votes open for the
sole purpose of reversing the outcome, the Chair advised that the first
record vote of a legislative day, especially if unexpected, may require
more time to complete (Jan. 18, 2007, p.__). In addition, the Chair is
constrained to differentiate between activity toward the establishment
of an outcome on the one hand and activity that might have as its
purpose the reversal of an already established outcome on the other. As
such, the Chair may hold the vote open beyond expiration of the minimum
time in order to allow all Members to vote.'' (Manual, 1014.)
\22\76 Cong. Rec. H3193 (daily ed. May 8, 2008).
---------------------------------------------------------------------------
One of the foundations of parliamentary procedure in the
House is that the Chair will be impartial in conducting votes.
The Chair's call of the vote result must be carried out without
partisanship\23\ and must reflect the true and accurate tally
as provided by the Clerk.
---------------------------------------------------------------------------
\23\Deschler-Brown Precedents 1, ch. 30.
---------------------------------------------------------------------------
In short, the Chair has nearly complete discretion as to
when to close a vote and exercises impartiality in the control
of a vote and the announcement of a result. The Chair provides
instruction and direction to the tally clerks, with the advice
and counsel of the Parliamentarian. As an agent of the Chair,
it is the tally clerks' responsibility to certify that the
tally provided the Chair is accurate.
The Events Surrounding Roll Call 814
By any measure, the week of August 2, 2007, was difficult.
The House was scheduled to depart for the August District Work
Period on August 3. The House was busy trying to complete much
of its legislative agenda, including completing the outstanding
appropriations measures. In fact, at the close of the
legislative day of Thursday, August 2, the House had been in
session for 51 hours that week and 65 hours the previous week.
The crush of legislative business, combined with the partisan
tone of the week's debate, created a contentious atmosphere
within the House chamber. John Sullivan, the Parliamentarian of
the House, described the atmosphere this way: ``The chamber was
about as raucous as it gets. This week of proceedings in the
House was, I don't mean to be judgmental, but it was the
ugliest week I can remember in the House.'' Mr. Sullivan noted
that throughout the events of the evening of August 2, the
membership was exercising little restraint in their deportment
on the House floor.\24\
---------------------------------------------------------------------------
\24\Select Committee Interview of House Parliamentarian John
Sullivan, Feb. 27, 2008, p. 366. (Hereinafter ``Sullivan interview''.)
---------------------------------------------------------------------------
On the night of August 2, 2007, the House was completing
consideration of H. R. 3161, the funding bill for the
Department of Agriculture and related agencies for the fiscal
year 2008. After concluding a series of 11 two-minute votes on
the remaining amendments to the bill, the Committee of the
Whole rose and reported the bill back to the House as amended.
At this point, the gentleman from New York, Mr. McNulty,
assumed the Chair as Speaker pro tempore.
At approximately 10:22 p.m.,\25\ the gentleman from
California, Mr. Lewis, the Ranking Republican Member of the
Committee on Appropriations, offered on behalf of the Minority
a motion to recommit the bill with instructions. The
instructions contained in the motion sought to report the bill
back to the House promptly with an amendment that ``(1)
prohibits any funds in the act (including grant funds) from
being used to employ an alien who is not authorized to be
employed in the United States; and (2) prohibits any funds in
the act for rental housing assistance programs to provide
assistance to an alien not authorized to receive such
assistance pursuant to 213A of the Immigration and Nationality
Act.''\26\
---------------------------------------------------------------------------
\25\All times cited in this report are keyed to the time code on
the video recording of floor proceedings prepared by the Office of the
Chief Administrative Officer for the use of the Select Committee.
\26\It is important to note that the instruction did not require
that the amendment be reported back to the House ``forthwith,'' meaning
that, if the motion were adopted, consideration on the bill would end
until further action by the Committee on Appropriations. The practical
effect would have been to delay any further consideration of the bill
until after the August District Work Period.
---------------------------------------------------------------------------
The Chair put the question on the motion. When Mr. McNulty
announced his opinion that the ``noes'' prevailed, Mr. Lewis
requested the yeas and nays, and the Chair announced that the
15-minute vote would be taken by electronic device.
Roll Call 814 began at approximately 10:34 p.m.
A Close Vote
The vote proved to be extremely close. Both the video
evidence and the log from the EVS examined by the Select
Committee show that the vote tally remained close for much of
the vote, usually within 5 to 10 votes one way or the other. At
approximately 10:35 p.m., 1 minute from the start of the vote,
Catlin O'Neill, a floor assistant to the Speaker,\27\ left her
position on the right side of the rostrum and walked to the
Democratic leadership table. At 10:38:30 p.m., Ms. O'Neill
returned to the rostrum, running down the aisle on the
Democratic side of the House chamber, and had a 3-second
interaction with Mr. McNulty. Although neither Ms. O'Neill nor
Mr. McNulty had any specific recollection of that conversation,
Ms. O'Neill testified that she believed she was asking him to
announce the time remaining in the vote.\28\ Seconds after this
interaction, the Chair banged the gavel and announced that
``Members have 10 minutes left to vote. The vote is on the
motion to recommit.''
---------------------------------------------------------------------------
\27\During her interview with the Select Committee, Ms. O'Neill
described her role as generally being responsible for the scheduling of
presiding officers and communicating with the rostrum staff and
presiding officers, typically through the parliamentarians, during the
conduct of a vote. Select Committee Interview of Catlin O'Neill, Feb.
25, 2008, p. 339. (Hereinafter ``O'Neill interview''.)
\28\O'Neill interview; Select Committee Interview of the Hon.
Michael R. McNulty, Apr. 9, 2008, p. 444. (Hereinafter ``McNulty
interview''.)
---------------------------------------------------------------------------
This was the first of three interactions between Ms.
O'Neill and Mr. McNulty during the course of Roll Call 814. The
second interaction occurred at 10:46 p.m., 12 minutes into the
vote. Here, the video again shows Ms. O'Neill returning to the
rostrum from the Democratic leadership table. She appears to
speak to Mr. McNulty for 3 seconds, turns away for 4 seconds,
and then appears to speak to him again for 2 seconds. Although
neither Ms. O'Neill nor Mr. McNulty had a specific recollection
of the substance of that conversation, Mr. McNulty again banged
the gavel seconds thereafter and announced that ``Members have
2 minutes in which to vote on the motion to recommit.''
Three Pivotal Minutes
By all accounts, the chamber was noisy. At 10:49 p.m., 15
minutes into the vote, the Majority Leader, Mr. Hoyer, walked
down the center aisle, and approached the right side of the
rostrum. As Mr. Hoyer walked through the well at 10:49:34 p.m.,
Jerry Hartz, the Speaker's Director of Floor Operations,
signaled to the Speaker, who then turned and proceeded to the
front of the rostrum to vote by well card. The Speaker's vote
brought the tally to 214 yeas and 214 nays.
Mr. Hoyer has acknowledged that he yelled several times, in
a voice he believed loud enough to be heard by the Chair,
``Close it [the vote] down,'' or words to that effect, and
appeared to make a gaveling motion in the direction of the
Chair.\29\ These comments were heard by at least six
professional staff on the rostrum that evening, but Mr. McNulty
testified before the Select Committee that he ``absolutely did
not hear that.''\30\
---------------------------------------------------------------------------
\29\Select Committee Interview of the Hon. Steny Hoyer, Apr. 16,
2008, p. 514. (Hereinafter ``Hoyer interview''.)
\30\See, e.g., Select Committee Interview of Kevin Hanrahan, Feb.
8, 2008, p. 157. (Hereinafter, ``Hanrahan interview''.); Select
Committee Interview of De'Andre Anderson, Feb. 8, 2008, p. 131.
(Hereinafter ``Anderson interview''.). See also, Hearing of the Select
Committee to Investigate the Voting Irregularities of August 2, 2007.
Investigative Hearing Regarding Roll Call 814, Day 1 and 2 (May 13 and
14, 2008).
---------------------------------------------------------------------------
Although Mr. Hoyer testified that he had no recollection of
the Speaker voting,\31\ his comments coincided with her voting.
---------------------------------------------------------------------------
\31\Hoyer interview, p. 502.
---------------------------------------------------------------------------
The third interaction between Ms. O'Neill and Mr. McNulty,
occurred at 10:49:46 p.m., slightly over 15 minutes into the
vote. Mr. Hoyer approached Ms. O'Neill, who was standing in the
well on the right side of the rostrum. Mr. Hoyer testified that
he told Ms. O'Neill that he wanted the vote closed while the
Majority was prevailing.\32\ Approximately 5 seconds later, Ms.
O'Neill turned and appeared to have a conversation with Mr.
McNulty: Mr. McNulty stood up, leaned towards Ms. O'Neill, and
gestured with his hand. Here again, Ms. O'Neill and Mr. McNulty
could not recall the specifics of this conversation. Both Ms.
O'Neill and Mr. McNulty testified that at some point Ms.
O'Neill told the Chair that the vote was going to be close, and
they both testified that Ms. O'Neill did not instruct Mr.
McNulty to close the vote.\33\
---------------------------------------------------------------------------
\32\Id.
\33\O'Neill interview, p. 446.
---------------------------------------------------------------------------
The video shows that at 10:50:06 p.m., the Parliamentarian,
John Sullivan, crossed the well and appeared to have a brief
conversation with Ms. O'Neill and Mr. Hoyer in the well at the
base of the rostrum.
At 10:50:05 p.m., 16 minutes and 3 seconds after the vote
began, the tally shown on the video turned to 214 yeas and 214
nays. The Chair struck the gavel and at 10:50:07 p.m. began to
announce that tally without waiting for a written tally slip.
However, Mr. McNulty never completed the statement because, as
he was in the process of making the announcement at 10:50:12
p.m., Messrs. Mitchell and Lampson, both Democratic Members,
submitted well cards to the standing tally clerk changing their
votes from ``aye'' to ``no.''
As the well cards of Messrs. Mitchell and Lampson were
being processed by the clerks at 10:50:16 p.m., three
Republican Members, Ms. Ros-Lehtinen and Messrs. Lincoln and
Mario Diaz-Balart, entered the well to change their votes from
``no'' to ``aye.'' Mr. McNulty testified that it was his
intention to close the vote after the last of these three well
cards had been entered (that of Mr. Mario Diaz-Balart) if no
other Member showed up in the chamber to vote.\34\ Mr. McNulty
further testified that ultimately he made this decision because
he observed no other Members in the well preparing to vote at
this time, and he was concerned that holding the vote open any
further might trigger criticism that he had violated clause
2(a) of rule XX.\35\
---------------------------------------------------------------------------
\34\McNulty interview, p. 444.
\35\Mr. McNulty here is referring to the new sentence in clause
2(a) of rule XX that states: ``A record vote by electronic device shall
not be held open for the sole purpose of reversing the outcome of such
vote.''
---------------------------------------------------------------------------
Testifying that he was frustrated that the vote had
remained open after the announcement of 214 yeas and 214 nays,
the Majority Leader confronted Mr. Sullivan on the second step
of the rostrum at 10:50:34 p.m., 29 seconds after Mr. McNulty's
aborted attempt to close the vote. Mr. Hoyer can be heard
saying in an animated tone: ``We control this House, not the
Parliamentarians.'' Mr. Hoyer testified that he was angry
because he believed, albeit mistakenly, that one of the
Parliamentarians had advised Mr. McNulty to keep the vote
open.\36\
---------------------------------------------------------------------------
\36\Hoyer interview, p. 503, 516.
---------------------------------------------------------------------------
At 10:51:25 p.m., approximately 18 minutes after the vote
began, the Chair announced for a second time the result as 214
yeas and 214 nays. Unlike the initial announcement, however,
Mr. McNulty added the words ``the motion is not agreed to,''
and banged the gavel. The Chair read the vote totals from the
electronic summary board rather than the usual practice of
waiting for a tally slip. As the gavel fell, Mary Kevin Niland,
the reading clerk, was still announcing Mr. Mario Diaz-Balart's
well vote. Due to the inherent short lag time in updating the
summary display, less than a second after Mr. McNulty announced
the result, the electronic display board upticked to 215 yeas
and 213 nays and displayed the word ``FINAL.''\37\ The
Republican side of the chamber erupted in anger as they
believed that the Majority had purposefully taken the ``win''
from them.
---------------------------------------------------------------------------
\37\The word ``FINAL'' appears on the display board when the Tally
Clerks have executed the third step in a five-step process for closing
an electronic vote in the EVS. The word connotes the status of the
computer file and its display. It has no parliamentary or legal
significance.
---------------------------------------------------------------------------
``Uncharted Territory''
The inconsistency between Mr. McNulty's announcement and
the total displayed on the summary board caused great confusion
among the rostrum staff. Many of them described to the Select
Committee that they were ``shocked'' or ``stunned'' by the
announcement. The confusion among the Clerk's staff was best
summed up by Mr. Kevin Hanrahan, the standing tally clerk
during Roll Call 814 this way: ``We were off track, and we were
in no man's land at that point.''\38\
---------------------------------------------------------------------------
\38\Hanrahan interview, p. 160.
---------------------------------------------------------------------------
Mr. Sullivan described the House as having crossed into
``uncharted territory.''\39\ The appearance of the word
``FINAL'' on the summary board exacerbated the confusion and
agitation of the Members in the chamber. Mr. McNulty testified
that he knew he had made an error. ``I was just kind of stunned
when I looked up and saw the 215-213 and the word `FINAL' after
it. I'll be very honest with you; I did not know what to do
next.''\40\ Mr. Hoyer testified that, because of the uptick, he
knew that the ``vote could not stand'' and that the ``Minority
was justifiably outraged.'' Furthermore, he approached John
Sullivan within 45 seconds of Mr. McNulty's announcement to ask
him the best way to vacate the vote.\41\
---------------------------------------------------------------------------
\39\Sullivan interview, p. 360.
\40\McNulty interview, p. 439.
\41\Hoyer interview.
---------------------------------------------------------------------------
Numerous witnesses, including John Sullivan and Charles
Johnson, testified that, since 1974 when the EVS became
operational, they had never seen a Chair announce the result of
a vote without waiting for the tally clerks to prepare a tally
slip signifying that the voting system had been closed to
further input.\42\
---------------------------------------------------------------------------
\42\In his interview, Mr. Sullivan described the importance of the
tally slip this way: ``Its main purpose is an assurance that the
numbers written on it were put there after the system had been closed
for further input and the numbers were static. It's probably the most
important quality control device in the announcement of a vote. So to
read a number off the wall, that's not a static number, that's a
snapshot of that computer refresh cycle. And there might be other
electrons on their way to the board. And to read a number from that
board is liable to be contradicted the next time the computer
refreshes.'' Mr. Sullivan also explained that Mr. McNulty's failure to
await a tally slip was a departure from the best practice on
announcement of a vote, but it was not a violation of the Rules of the
House. (Sullivan interview, p. 58.)
---------------------------------------------------------------------------
At 10:51:38 p.m., 8 seconds after the announcement, Ms.
Gillibrand, a Democratic Member who had been visible in the
well, approached the rostrum and began filling out a well card.
A few seconds later, Mr. Space, a Democratic Member--who had
been standing at the desk for more than a minute--submitted a
well card, as did Ms. Gillibrand, both of whom changed their
votes from ``aye'' to ``no.''
Mr. McNerney, a Democratic Member, approached the rostrum
and also began filling out a well card at 10:52:05 p.m., 35
seconds after the announcement. At 10:52:35 p.m., Ms. Niland
began announcing the changes earlier submitted by Ms.
Gillibrand and Messrs. Space and McNerney. At the same time,
Mr. Sullivan approached the Chair and began writing an
explanatory statement, which was to include a final vote tally.
Mr. Sullivan testified that he intended that this statement be
considered the ``functional equivalent'' of a tally slip.\43\
---------------------------------------------------------------------------
\43\Document Production of House Parliamentarian John Sullivan,
Reflections on Roll Call 814 (received by Select Committee Jan. 4,
2008).
---------------------------------------------------------------------------
The Aftermath
In the minutes immediately following the Chair's
announcement, there was a great deal of rostrum traffic.
Members from both parties approached the Chair and the
parliamentarians.
At 10:54:37 p.m., approximately 3 minutes after the
announcement, Mr. Boehner, the Minority Leader, entered the
well with his hand raised, indicating his intent to cast a
vote. At 10:54:50 p.m., Mr. Boehner submitted a red well change
card, intending to change his vote from ``aye'' to ``no.''
Although unknown to Mr. Boehner for at least several days after
this incident, it was later discovered that his well change
card was never processed.
At 10:54:57 p.m., Mr. Sullivan can be seen giving Mr.
McNulty the statement that he had been preparing. When Mr.
McNulty appeared to move toward the microphone to read from the
paper, Mr. Sullivan asked him to refrain until they can ``make
sure this is sorted out.''
At approximately 10:55 p.m., Mr. Hoyer submitted a red well
change card. This card was never processed because it
duplicated his existing vote against the motion already
recorded in the EVS.\45\
---------------------------------------------------------------------------
\45\Mr. Sullivan explained that ``Technically, the duplicate should
have been processed as well, in which case the reading clerk, rather
than saying off aye on no, Mr. Hoyer, would say Mr. Hoyer voted no,
meaning this is a duplicate, we already have that in the system.''
(Sullivan interview, p. 387.)
---------------------------------------------------------------------------
Approximately 20 seconds later, after being called over by
the seated tally clerk, De'Andre Anderson--who appeared to be
experiencing some difficulty--Mr. Sullivan can audibly be heard
saying, ``We've got big problems, bigger than that.''
At approximately 10:56 p.m., Mr. McNulty banged the gavel
and recognized Mr. Hoyer, who made a unanimous consent request
to ``vacate the vote we have just taken.'' Multiple objections
were heard coming from the Republican side of the chamber.
Hearing those objections, Mr. McNulty began conferring with
Messrs. Wickham and Lauer, while Mr. Sullivan began conferring
with other Members and staff. In particular, Mr. Sullivan
expressed his hope to Mr. Boehner's floor staff, Jay Pierson
and Jo Marie St. Martin, that objections would be withdrawn and
that Mr. Hoyer could attempt another unanimous consent request
to vacate because, in Mr. Sullivan's opinion, this was the best
option ``to achieve justice.''\46\
---------------------------------------------------------------------------
\46\Sullivan interview, p. 367.
---------------------------------------------------------------------------
At 10:57:38 p.m., Mr. Hoyer embarked on a second option.
Mr. McNulty recognized the Majority Leader, who moved to
``reconsider the vote by which the previous vote was taken.''
Mr. McNulty stated that he first had to call the vote
before the motion to reconsider would be in order. Reading from
the statement prepared by Mr. Sullivan, Mr. McNulty began his
announcement by trying to explain the events that had
transpired, while being repeatedly interrupted by shouts from
the chamber.\47\
---------------------------------------------------------------------------
\47\At 10:58:02 the video shows Mr. McNulty stating: ``The Chair
prematurely called the vote at 214-214 * * * while there were still
votes being entered. After all of the cards were added, the final vote
was 212 to 216 nay.'' The transcript in the Congressional Record for
that day differs and better reflects the statement written by Mr.
Sullivan for the Chair: ``The Chair prematurely announced that the
motion was rejected on a tie vote of 214-214. After the cards already
submitted in the well were entered in the computer, the result was the
same, albeit by a different tally, 212-216. The motion is not
adopted.'' (126 Cong. Rec. H9650 (daily ed. Aug. 2, 2007, vol. 2.))
---------------------------------------------------------------------------
At the conclusion of Mr. McNulty's statement, he recognized
the Majority Leader, who moved to reconsider the vote. At
approximately 10:59 p.m., the Chair put the question on the
motion to reconsider. Mr. Boehner requested a recorded vote,
which was ordered at 10:59:20 p.m.
An EVS Failure Adds to the Confusion
It first became evident that there was a problem with the
EVS at 10:54:57 p.m., when Mr. Sullivan can be heard advising
the Chair that there was a problem with the computer. Mr.
Anderson testified that he was unable to terminate the
vote.\48\ Mr. Hanrahan can be seen leaning over the second tier
of the rostrum consulting with Mr. Anderson and looking at the
screen of the EVS terminal at numerous points in the video. At
10:59:31 p.m., Mr. Wickham can be seen consulting with the
tally clerks and Ed Sorenson, the Deputy Clerk with
responsibility for technical operations--and the senior member
of the Clerk's staff on duty that evening.
---------------------------------------------------------------------------
\48\Anderson interview, p. 135.
---------------------------------------------------------------------------
According to a presentation subsequently prepared by the
Clerk's office, at that point the EVS vote on the original
motion to recommit was not yet terminated, meaning that the
seated tally clerk had not been able to complete all of the
steps required to terminate the vote, release the summary
boards, and move on to the next vote. That document states that
``because the termination process was reversed for additional
well votes, EVS would not terminate normally.''\49\ In his
interview, Mr. Sorenson stated that he recognized that there
was a problem with the computer and realized that the House
could not move on to the vote on the motion to reconsider until
it was resolved.\50\
---------------------------------------------------------------------------
\49\Draft Memorandum. from Lorraine Miller, Clerk of the House to
Comm. on House Admin. (Sept. 2007) CLERK 467-494.
\50\Select Committee Interview of Ed Sorenson. Feb. 4, 2008, p. 47.
(Hereinafter ``Sorenson interview''.)
---------------------------------------------------------------------------
At 11:00:26 p.m., Mr. Boehner moved to adjourn and Mr.
McNulty informed the Members of the problem with the computer:
``I would advise the Minority Leader that that motion is not
proper at this time because we are in a * * * vote on the
motion to reconsider. The only reason it is not on the board is
that the machine is down.''\51\
---------------------------------------------------------------------------
\51\Again, the statement which appeared in the Congressional Record
was different than the Chair's utterance: ``The Chair would advise the
minority leader that this motion is not proper at this time because we
are in a vote on the motion to reconsider the vote on the motion to
recommit with the previous question ordered to final passage without
other intervening motion. The only reason it is not on the board is
that the machine is down.'' (126 Cong. Rec. H9651 (daily ed., Aug. 2,
2007, vol. 2).)
---------------------------------------------------------------------------
Messrs. Sullivan, Wickham, and Sorenson discussed the
options for moving forward. A decision was ultimately made to
``abort'' the vote (essentially ``undoing'' the vote and, for
purposes of the EVS, making it as if the vote had never
occurred). Both Mr. Sullivan and Mr. Sorenson testified that
Mr. Sorenson was certain that aborting the vote would not
result in data being lost in the long-term; however, it would
be lost in the immediate term.\52\ It would take several hours
to recapture the results from the main computer for depiction
in the Journal and the Congressional Record.
---------------------------------------------------------------------------
\52\Sullivan interview, p. 391, and Sorenson interview, p. 54.
---------------------------------------------------------------------------
At 11:02:30 p.m., the vote was aborted, the data from that
vote became unavailable on the EVS, and the motion to
reconsider showed up on the EVS terminals, including those on
both the Republican and Democratic sides of the chamber as Roll
Call 814.\53\
---------------------------------------------------------------------------
\53\Over the course of the night of August 2 and the early morning
hours of August 3, the Clerk's personnel reconstructed Roll Call 814 by
using data stored in various files on the EVS. Once the vote was
reconstructed, the subsequent votes were renumbered as Roll Call 815
and 816.
---------------------------------------------------------------------------
Finally, at approximately 11:03 p.m., most Republican
Members walked out of the chamber in protest. The next day, on
August 3, Mr. McNulty apologized to the House for his role in
the controversy.
Findings and Analysis
The evidence gathered by the Select Committee during the
course of its investigation shows that Roll Call 814 was, in
many ways, the perfect storm: a long and contentious week; a
close vote on a politically sensitive issue; the lateness of
the hour; urging from the Majority Leader and other Members to
close the vote; an attempt by the Chair to uphold or enforce
clause 2(a) of rule XX; and a breakdown of the EVS. This
unfortunate combination of factors effectively undermined the
confidence of many Members in the outcome of Roll Call 814, and
also raised their concerns about the integrity of the voting
process on that occasion. It is the Select Committee's hope
that the findings and recommendations set forth in the
subsequent pages will help to prevent such a situation from
reoccurring.
finding 1
As is the traditional role of the Majority Leader,
Mr. Hoyer urged the Chair to close the vote--after time
for voting had expired and with no apparent voting
activity in the well--when the majority was prevailing.
Neither the Chair nor the rostrum staff was pressured
to circumvent the rules and practices of the House.
Nevertheless, the Chair's premature announcement of the
vote led to a series of cascading errors on the
rostrum, including the failure to process well cards
submitted by the Minority and Majority Leaders and a
failure in the EVS, all of which further undermined
many Members' confidence in the integrity of the vote.
The Select Committee recognizes that the House is a
political body in which the Majority Leader and other leaders
(past, current, and yet to come) make every reasonable attempt
to ensure that their side will prevail during a close vote.
Roll Call 814 was just such a close vote. It was a vote Mr.
Hoyer wanted to win, and he attempted to communicate to Mr.
McNulty his desire that the vote be closed.\54\ Mr. Hoyer
acknowledged making such statements and admitted that it was
``certainly possible'' that he helped create an atmosphere
where Mr. McNulty felt pressure to close the vote sooner than
he might have otherwise.\55\ For his part, Mr. McNulty
testified that he neither heard those comments nor felt
pressure.\56\
---------------------------------------------------------------------------
\54\``I was saying we need to shut down the vote * * * Clearly I
wanted the vote to terminate at the time that the votes were in * * *
but it was not a conversation [with Mr. McNulty], because I was never
proximate to him * * * I never had a conversation with * * * Mr.
McNulty.'' (Hoyer interview, p. 510.)
\55\Q: ``Is it possible in your mind that your demeanor that night
may have unintentionally created an environment of more pressure on
[Mr. McNulty] to close the vote? I mean, do you [believe] that you may
have inadvertently created an environment where he felt more pressure
to drop the gavel than he would have otherwise?'' A: ``Certainly
possible.'' (Rep. Pence & Rep. Hoyer, Hoyer interview, p. 535.).
\56\Q: ``[F]or all the questions about whether he [Mr. Hoyer]
pressured you or influenced you, I don't even see his physical
presence. Do you agree with that?'' A: ``I don't recall his physical
presence, and I know that he was never successful in communicating
anything to me.'' (McNulty interview.)
---------------------------------------------------------------------------
Mr. McNulty aborted his first attempt to call the vote
because, in complying with the Speaker's opening day policy, he
noticed Members in the well changing their votes.\57\ Mr. Hoyer
believed, albeit mistakenly, that the Parliamentarian had
intervened when the well was empty to prevent the Chair from
closing the vote.\58\ As a result, Mr. Hoyer approached Mr.
Sullivan, for approximately 2 seconds on the side of the
rostrum, and stated in an animated manner that ``we control
this House, not the Parliamentarians.''
---------------------------------------------------------------------------
\57\``I stopped because somebody was in the House with a card,
attempting to change the vote, and then others followed.'' (McNulty
interview, p. 447).
\58\``Mr. McNulty called the vote [at 214 yeas and 214 nays] [and]
I thought he was acting within his discretion as the Speaker. From my
perception * * * the other parliamentarian [Ethan Lauer] appeared to me
to be saying to Mr. McNulty--again, I could not hear anything, so I'm
telling you what appeared to me to be the case--appeared to be saying
to Mr. McNulty he could not do that.'' (Hoyer interview, p. 503.)
---------------------------------------------------------------------------
Some of the rostrum staff testified that Mr. McNulty's
second premature announcement of the vote (which included an
unequivocal statement of result) left them ``stunned,'' or
words to that effect.\59\ The Select Committee found that the
announcement created a sense of confusion on the rostrum that
evening, particularly among the professional staff. Although
there was no intent to interfere with the execution of duties
of the rostrum staff, the confusion contributed to the
technical mistakes made on the rostrum that evening.
---------------------------------------------------------------------------
\59\``I was entering Mr. Mario Diaz-Balart's vote into the system.
And as I was doing that, the Chair * * * announced the vote and pounded
the gavel. I was stunned that, first of all, the process had been
bypassed. I basically just continued to do my job as Seated Tally
Clerk.'' (Anderson interview, p. 133.); ``As soon as the Chair made the
announcement that night and banged that gavel, our protocol--we were
thrown off, we were gone, we were done. We were off track and we were
in no man's land at that point.'' (Hanrahan interview, p. 160.)
---------------------------------------------------------------------------
All Members are responsible for creating an atmosphere of
civility and decorum. The Select Committee reminds all Members
that they must be mindful that rostrum staff is executing
specific and sometimes urgent responsibilities on the rostrum
and, therefore, they should gauge their need to interrupt
rostrum staff accordingly.
When the seated tally clerk attempted to close Roll Call
814, there was a failure in the EVS. This failure further added
to the confusion that night by preventing the clerks from
following their normal procedures for releasing the system and
starting the next vote. The problem was further exacerbated by
the decision to abort the vote, causing the loss of EVS data
related to Roll Call 814 until it could be recovered the next
day. Neither the Chair, the Leadership, nor the Leadership
staff, participated in the decision to abort the vote.
The clerks also failed to process two well changes
submitted while the vote was still open. The first unprocessed
card, from Mr. Boehner, changed his vote from an ``aye'' to a
``no''--a procedural necessity if he were to offer a motion to
reconsider. The second, cast by Mr. Hoyer, duplicated his
electronic vote and therefore would not have affected the final
tally but should have nonetheless been announced by the reading
clerk.\60\
---------------------------------------------------------------------------
\60\See footnote no. 45.
---------------------------------------------------------------------------
There may be a disagreement about what should be the final
vote tally, but one fact is indisputable: the vote tally of 212
yeas and 216 nays that was finally announced is incorrect. It
is either 215 yeas and 213 nays, which would have reflected the
tally at the time the Chair prematurely announced the statement
of result, or 211 yeas and 217 nays, which would have reflected
the tally had Mr. Boehner's well card been processed.
On this occasion, the Select Committee acknowledges the
work of the rostrum staff under difficult circumstances during
a vote that was complicated by many factors, significantly the
Chair's premature announcement.
finding 2
The Chair failed to observe the customary procedures
and protocols for closing a vote, resulting in an
inaccurate announcement and unintentionally raising
concerns regarding the legitimacy of that vote.
Mr. McNulty twice failed to await a tally slip prior to
attempting to announce the result of Roll Call 814. The first
of those attempts was aborted by Mr. McNulty because additional
Members entered the well with the intention of casting votes;
the second attempt was completed when Mr. McNulty recited an
unequivocal statement of result (``the motion is not agreed
to''). However, this announcement was premature and inaccurate.
Moreover, the Parliamentarian testified that the premature
announcement was immediately impeached by the uptick on the
board and ``could not be afforded legitimacy.''
The protocol employed by the Clerk, the ultimate outcome of
which is the tally slip, is designed to reinforce the
legitimacy of the vote and ensure that the Chair is able to
report an accurate result to the House.
Although Mr. McNulty is an experienced and well-regarded
presiding officer,\61\ he was not experienced in administering
the new provision of clause 2(a) of rule XX.\62\ Out of concern
and confusion, he failed to follow the long-established
procedures for closing a vote, unintentionally leading the
House into uncharted territory, and thereby raising concerns
about the legitimacy of the vote.\63\
---------------------------------------------------------------------------
\61\``I don't know that (Mr. Hoyer and I) have had detailed
discussion about [Roll Call 814], except [one] * * * actually about Mr.
McNulty. Mr. Hoyer was sharing with me Mr. McNulty's concerns about how
his position could be perceived here. And I reached out and talked to
[Mr. McNulty] after that and told him that I didn't know anybody on
either side of the House that thought that he had intentionally done
anything that was unethical or that he should spend undue time worrying
about this. It's just something we needed to work out and not see
repeated in the future. * * * [I said that] sometimes you get caught in
a situation that things happen that you don't intend to happen, and
that he should feel confident in his respect that the Members have for
him personally.'' (Select Committee Interview of the Hon. Roy Blunt,
Apr. 8, 2008, p. 410.); ``I think, as I have told you privately on the
floor, I hold you in high regard. I admire you for your sense of
professionalism and for your fairness. Let me say I think that that is
why I and the other members of this committee on the minority side are
struggling so much with this, with the facts of this incident. This was
not a Mike McNulty moment. It was not. I want to say that while I am
complimenting you. (Pence, McNulty interview); ``I accept the regrets
offered by my friend from New York. Having been in the Chair myself, I
can understand how it can happen. He and I are friends. He is, in fact,
one of the fairest Members who could ever be in the Chair.'' (Rep.
Boehner, 127 Cong. Rec. H9661 (daily ed., Aug. 3, 2007, vol. 1). ``I
believe Mr. McNulty is an extraordinarily honest person of high
integrity * * * He's a wonderful human being.'' (Hoyer interview).
\62\``Q: From the time when you were in the Chair as Speaker Pro
Tem in the old majority and now when you had begun to preside or did
begin to preside in the new majority, aside from clause 2(a) that we've
been talking about, did you notice any other difference, in terms of
were the rules different? Was presiding different? Was it handled any
differently than you recall?
``A: Not that I can recall, Steve.
``Q: Pretty much, the votes were the same, they were called the
same?
``A: The language was the same on calling the votes and so on. Of
course, I've done it so many times through the years that those little
cards that they give you? I mean, most of the time, I don't even need
them.
``Q: Right. Do you recall any instance, either in the old majority
or since you have presided beginning in 2007, when you called the vote
without the benefit of a tally slip?
``A: No.
``Q: Okay. Would you--
``A: Prior to 2007, there was no clause 2(a) of rule XX.'' (McNulty
Interview, p. 443).
\63\``To summarize, I called this vote prematurely, and that action
caused a measure of chaos, confusion, and anger on the House floor. The
morning after the event, I publicly apologized on the House floor to
all Members of the House of Representatives. I repeat that apology
today.'' (United States. Congress. House. Michael R. McNulty, Statement
for the Congressional Record. Hearing of the Select Committee to
Investigate the Voting Irregularities of August 2, 2007. Investigate
Hearings Regarding Roll Call 814. (May 13, 2008, p. 428))
---------------------------------------------------------------------------
finding 3
The new sentence of clause 2(a) of rule XX (creating
the rule against holding a vote open for the sole
purpose of reversing the outcome), added at the
beginning of this Congress, was a major contributing
factor to the perfect storm of events of August 2,
2007. As evidenced by those events, this sentence is
unworkable in practice.
With one exception, the Chair has complete discretion to
close votes at any point after the minimum period for voting
guaranteed under rule XX has expired. The Parliamentarian is
merely an advisor to the Chair and cannot close votes. The
exception to the Chair's complete discretion to close a vote is
the new sentence of clause 2(a) of rule XX. Under this
sentence, the Chair may not hold open a vote with the sole
intent of reversing the outcome. The application of this
sentence, therefore, pivots on the intent of the Chair.
The Chair, Mr. McNulty, testified that he believed that
holding the vote open after Mr. Mario Diaz-Balart changed his
vote would subject him to criticism that he was violating the
new sentence of clause 2(a).\64\ This overriding concern
prompted Mr. McNulty to announce the result immediately after
Mr. Mario Diaz-Balart cast his vote, breaking the long-standing
practice of the Chair of announcing a vote from a tally
slip.\65\ Although the result of the vote at this time was 215
yeas and 213 nays, Mr. McNulty, looking at the display board
over the east door of the chamber, understood the result to be
214 yeas and 214 nays, and that is the result that he
announced.\66\
---------------------------------------------------------------------------
\64\``When I announced the vote at 214-214 * * * I did not do so at
the direction of any other person or persons. I did so on my own, in an
attempt to enforce clause 2(a) of rule XX, which states that recorded
vote by electronic device shall not be held open for the sole purpose
of changing the outcome. My attempt to enforce clause 2(a) of rule XX
was the reason for not following the usual, but not required, procedure
of waiting for the written slip from the Tally Clerk.'' (Select
Committee Hearing, May 13, 2008, p. 429).
\65\``It was not so much a conscious decision not to have the tally
sheet [sic]. I really wasn't thinking of that at the time. I was
fixated on enforcing, or at least acting in such a manner that there
would not be the appearance of me holding the vote open for the purpose
of changing the outcome.'' (Id.)
\66\``[The failure to wait for a tally slip] was clearly a mistake
on my part * * * because it now seems apparent that the vote change
which was announced by the Clerk just prior to my calling the vote at
214-214 had not yet been recorded by the computer, thus the discrepancy
which ensued almost immediately after.'' (Id.)
---------------------------------------------------------------------------
Mr. McNulty's testimony that he prematurely announced the
vote immediately after Mr. Diaz-Balart cast his vote because he
was concerned about violating clause 2(a) raises the question
of whether Mr. McNulty violated clause 2(a) when he
subsequently allowed the vote to be held open after his
premature announcement for approximately 7 additional minutes
while Members changed their votes (with the result changing to
212 yeas and 216 nays), thereby reversing the outcome. However,
some believe that a finding of a violation of clause 2(a) does
not appear warranted because it would have to be based on an
interpretation of clause 2(a) as capable of being violated even
without the intent required by the new sentence of clause 2(a),
given that Mr. McNulty did not intend to hold the vote open for
the sole purpose of reversing the outcome. Mr. McNulty
testified that his nearly instantaneous realization that his
premature announcement was inaccurate caused his thinking to
shift from clause 2(a) to one of permitting the Parliamentarian
time to clarify the unprecedented situation caused by his
mistaken announcement.\67\ Neither Mr. McNulty nor the
Parliamentarians had previously encountered or anticipated this
error, and everyone was, as Mr. Sullivan testified, ``in
uncharted territory.''\68\
---------------------------------------------------------------------------
\67\``[A]fter I looked up at the board and saw the different total,
I knew that I had committed an error. And I first started in the Chair
under Bill Brown when he was the Parliamentarian, and I remember him
spending a lot of time with me when I was in the Chair and things were
quiet and him tutoring me about things. And one of the things that I
remembered that he said that popped into my mind at that very moment
was, when in doubt, do what the Parliamentarian says. And I knew that I
had committed an error that had caused this chaos in the House. And I
made the determination at that moment that I wasn't going to make any
other ruling on that vote without the concurrence of the
Parliamentarian. And what John said to me was, I am going to write out
a statement for you to read. And I decided to wait until that was
completed and to read it.'' (Id., p. 439)
\68\``What was uncharted about it to me was that it was an
unequivocal statement of a result by the presiding officer * * * it was
one that just by the surrounding circumstances could not be accorded
legitimacy. I believe, now I'm not sure about this, but I believe the
minute he uttered that [result] there was an uptick on the board * * *
which was a manifestation to me that there were still electrons flying
around. And then I looked at the tally clerks and saw that they had
still other cards to input. It wasn't just that the last card had hit
the board. There were several more cards to be done * * * And the board
was not the result. The result was what the Chair announced. And those
two differed at that point. The precedents that I'm aware of in this
area that basically say if there is a mistake by human intervention,
then you can, by unanimous consent, correct the mistake. They're
limited to cases in which the result would not change. I'm not sure
what the rationale for that was, but the basic rule is that, if Members
are recorded incorrectly because of somebody else's human error and it
would not change the result on the pending question, then even after
the fact those Members may be recorded correctly. * * * those
precedents largely arose with calls of the roll before the electronic
voting system. The precedents of the electronic voting system are based
on the idea that the machine is infallible * * * there is no human
intervention. If a Member pushes the wrong button, that's the way the
ball bounces. Here the human intervention that put us in uncharted
territory was the presiding officer's premature announcement of the
result. So it was a case not previously solved.'' (Sullivan interview,
p. 361.)
---------------------------------------------------------------------------
There still are open questions regarding the interpretation
of this sentence of clause 2(a) as applied to this case. In
particular, questions remain as to whether the intent
sufficient to trigger the rule occurred at Mr. McNulty's
penultimate announcement of the result or whether his later
decision to hold the vote open was sufficient to change the
analysis. The Parliamentarian devised a parliamentary solution
to the quagmire caused by the premature announcement which was
executed by Mr. McNulty. This solution required the Chair to
hold the vote open: (1) to allow the Clerk to process well
votes that were turned in seconds after the premature
announcement;\69\ (2) to allow the Parliamentarian to draft a
statement for the Chair to read that coupled an acknowledgement
of error with an ultimate announcement of the result (212 yeas
and 216 nays); (3) to allow the Parliamentarian to inform the
Majority Leader, the Chair, and others, including Members and
staff from the Minority, about the solution; and (4) to allow
the Parliamentarian to discuss with the Majority Leader
parliamentary options for retaking a vote that the Majority
Leader believed ``could not stand.''\70\
---------------------------------------------------------------------------
\69\By the time Mr. Sullivan focused on the tally clerk, those
cards were being processed. As he testified, Mr. Sullivan did not know
precisely when those cards were submitted (before or after the
announcement) or whether the EVS had been closed to further input.
``[U]nder the circumstances, it [the unequivocal statement of the
result by the Chair] was impeached by the surrounding circumstances,
immediately contradicted by an uptick on the scoreboard. And when I
gathered myself, I saw red and green cards sitting in front of the
Tally Clerk * * * (Sullivan Interview, p. 362). ``The uncharted
territory here was the announcement of a result before the Tally Clerks
had done their shut down from the periphery. The voting stations may
well have still been open. A 429th vote could have come in from the
back rail.'' (Sullivan Interview, p. 366).
\70\Mr. Sullivan's explanation regarding his statement for the
Chair: ``Part of the time I spent explaining what I was writing down
for him; explaining that we had an unsustainable ostensible
announcement of a result and we needed to apprise the House that it
could not be accorded legitimacy; and that the system, when allowed to
settle, produced different numbers, albeit no change in the result, and
that would be the result, but it had to be preceded by at least some
acknowledgement of error. [T]hen * * * I told him I now intend to go
down to the well and see what could be worked out in the way of
throwing oil on the water. * * * My conversation with Mr. Hoyer was my
advice to him that if he wanted to try to do something here, it would
be unanimous consent to vacate the conduct of that vote. And I believe
that I was trying to contrast the utility of that move with the motion
to reconsider. That it was superior, both in terms of its tendency to
smooth things down and in terms of its legislative economy * * * He was
in listen mode at that point, I believe. I don't think he responded.
[At 23:57:08] on the [TV] screen I see myself, Jay Pierson and Lynn
Westmoreland. And standing off to the side is Jo-Marie St. Martin, who
is Mr. Boehner's counsel * * * and we were joined at some point by Mr.
Hobson. [The nature of this conversation is that] Mr. Hoyer asked to
vacate, objection was heard, and I was just consulting with Jay about
whether they had a better solution in mind. That in terms of finishing
the business and letting Members go, and in terms of trying to achieve
justice on the motion to recommit, I could see no more immediate or
suitable solution than a do-over, as it were. And so I was just making
sure that such an option wasn't going to be foreclosed just by a
visceral objection, then maybe, maybe people could see the benefit. So
I was talking with Jay on those bases, I believe. [The minority staff
did not offer] any particular procedural gambits. Jay may have apprised
me of the level of outrage, how unthinkable it might be that they could
achieve unanimous consent to vacate the proceedings.'' (Sullivan
interview, p. 367.)
---------------------------------------------------------------------------
The Chair's inclusion of an unequivocal statement of result
in the Chair's second premature announcement raises the
question of whether an equally reasonable alternative
parliamentary solution could have required Mr. McNulty to
reannounce the vote as 215 yeas and 213 nays, which was the
accurate vote at the exact point in time of the premature
announcement and would reflect the Chair's intent to close the
vote after Mr. Mario Diaz-Balart had voted.
Any evaluation of this approach is complicated by the role
clause 2(a) played in Mr. McNulty's premature announcement and
the consequent necessity to consider his purpose in allowing
Members in the well to change their votes seconds thereafter.
Clause 2(a) potentially conflicts with the Speaker's announced
policy that Members in the well should be afforded the
opportunity to vote.
In this situation, the Select Committee finds that this
approach also would have been reasonable but will not opine on
whether this approach would have been preferable to the
Parliamentarian's solution, which the Select Committee finds
was not an unreasonable outcome under the circumstances.\71\
---------------------------------------------------------------------------
\71\Mr. Sullivan supported his advice to the Chair this way: ``What
was wrong with the announcement was not the particular numbers it
contained, but that it contained unsettled numbers. And, in my
judgment, to just introduce a different pair of unsettled numbers would
not solve the problem.'' Select Committee Hearing, May 13, 2008.
---------------------------------------------------------------------------
Recommendations
In light of the findings detailed in this report, the
Select Committee recommends the following:
CLAUSE OF 2(A) OF RULE XX
Deleting the new sentence of 2(a)
First, the Select Committee recommends the deletion of the
sentence in clause 2(a) of rule XX that states: ``A record vote
by electronic device shall not be held open for the sole
purpose of reversing the outcome of such vote.'' [emphasis
added] The Chairman of the Select Committee described the rule
in his opening remarks at the May 13 hearing of the Select
Committee this way: It is ``a rule that was enacted with a
noble intent to curb other perceived abuses, but a rule that
is, at best, difficult to enforce, and at worst, the catalyst
for the raw anger that we observed on August 2nd.''\72\
---------------------------------------------------------------------------
\72\Opening Statement of Chairman Delahunt, Select Committee
Hearing, May 13, 2008.
---------------------------------------------------------------------------
The Chairman's concern that the rule is difficult to
enforce is supported by the body of precedent that has
developed under the two-year operation of this rule. Under the
rule ``the Chair is constrained to differentiate between
activity toward the establishment of an outcome on the one hand
and activity that might have as its purpose the reversal of an
already established outcome on the other.''\73\ In other words,
an observer of the Chair's conduct of a record vote cannot
discern, for purposes of enforcement of the rule, whether an
activity is motivated by an intention to reverse the outcome.
Furthermore, it is not enough that the activity be motivated by
an intention to reverse an established outcome because the rule
``focuses very clearly on exclusivity of purpose.''\74\ As the
rules and practices of the House contemplate, however, a
presiding officer could be motivated by multiple factors.\75\
For example, the Chair could be intent on reversing an outcome
while also intent on upholding the Speaker's opening day policy
to ensure that all Members in the well desiring to vote have
the opportunity.\76\
---------------------------------------------------------------------------
\73\House Rules and Manual p. 808; see also Hulshof, Select
Committee Hearing, Oct. 25, 2007, p. 34.
\74\Davis, Select Committee Hearing, Oct. 25, 2007, p. 19.
\75\Id.
\76\Speaker Pelosi, Jan. 5, 2007, p. --, (Manual 1014).
---------------------------------------------------------------------------
Former Parliamentarian Charles Johnson described the
dilemma this way: ``Others can claim to know because they have
seen pressures brought to bear externally, but it is the
Chair's intent as discerned by the Chair at that moment in time
as the vote is being kept open'' that is dispositive.\77\ Even
though the rule is entirely focused on the exclusive motivation
of the Chair, Mr. Johnson stated that it would be inappropriate
to require the Chair to declare a reason for delaying a
vote.\78\ Without such a declaration, it is impossible for the
House to determine whether the Chair had the requisite intent
necessary to find a violation of the rule.
---------------------------------------------------------------------------
\77\Select Committee Hearing, Oct. 25, 2007, p. 19.
\78\Id, p. 20.
---------------------------------------------------------------------------
In addition, as held by the Chair on May 8, 2008 (sustained
on appeal), the rule does not establish a point of order having
an immediate procedural remedy. The rule instead sets a
standard of behavior for presiding officers (and one involving
mens rea, at that) enforceable only on a collateral basis, as
by a question of the privileges of the House.\79\ The dignity
and integrity of the proceedings of the House are dependent
upon the dignity and integrity of its Speaker and those she
appoints to serve in the Chair. The Chair's conduct of a vote
was within the purview of rule IX before the adoption of this
rule, and any perceived misconduct on the part of the Chair
will remain the subject of a question of the privileges of the
House if the Select Committee's recommendation is adopted.\80\
---------------------------------------------------------------------------
\79\76 Cong. Rec. H3193 (daily ed. May 8, 2008).
\80\See Johnson, Select Committee Hearing, Oct. 25, 2007, pp. 18,
20. For example, a resolution alleging abuse of the customs and
practices of the House in holding a vote open for 3 hours was held to
be just such a question of privilege under rule IX (Manual 704).
---------------------------------------------------------------------------
Furthermore, the Select Committee does not believe that
striking the sentence in question from the rule reduces the
standard of conduct for the Chair. Indeed, Mr. Johnson stated
that the first and second clauses of the Code of Conduct (rule
XXIII)--requiring conduct in a manner that reflects creditably
on the House and requiring adherence to the spirit and the
letter of the rules--apply to the conduct of the Chair. In
particular, in Mr. Johnson's view, the reference in rule XXIII
to the spirit of the rules ``speaks volumes.''\81\
---------------------------------------------------------------------------
\81\Select Committee Hearing, Oct. 25, 2007, pp. 41-42.
---------------------------------------------------------------------------
In that vein, the Select Committee points to the principles
that regulate the duties of the Speaker as articulated by
Speaker Clay when he took the Chair on December 1, 1823. On
that occasion, he described the principles as follows: ``They
enjoin promptitude and impartiality in deciding the various
questions of order as they arise; firmness and dignity in his
deportment toward the House'' and ``carefully guarding the
preservation of the permanent laws and rules of the House from
being sacrificed to temporary passions, prejudices, or
interests.''\82\ Those principles will remain intact if the
House chooses to adopt the Select Committee's recommendation.
---------------------------------------------------------------------------
\82\Asher C. Hinds, Hinds' Precedents, 1307, vol. 2.
---------------------------------------------------------------------------
Revised rule
In order for clause 2(a) of rule XX to reflect this change,
the Select Committee recommends that the clause be amended to
read as follows:
2.(a) Unless the Speaker directs otherwise, the Clerk
shall conduct a record vote or quorum call by
electronic device. With respect to any such record vote
or quorum call the Clerk shall enter on the Journal and
publish in the Congressional Record, in alphabetical
order in each category, the names of Members recorded
as voting in the affirmative, the names of Members
recorded as voting in the negative, and the names of
Members answering present as if they had been called in
the manner provided in clause 3. Except as otherwise
permitted under clause 8 or 9 of this rule or under
clause 6 of rule XVIII, the minimum time for a record
vote or quorum call by electronic device shall be 15
minutes.
This change strikes the new sentence added to the rule at
the beginning of the 110th Congress.
best practices
The Select Committee recommends a revision of certain
practices of the House that govern voting by electronic device.
Formalization of policy to ensure an accurate vote total
As the Select Committee discussed previously, the Chair's
inaccurate announcement raised concerns regarding the
legitimacy of Roll Call 814. Under current practice, the Clerk
utilizes the tally slip as the mechanism to indicate to the
Chair that the vote tally is accurate at that point in time.
From the earliest moments of the Select Committee's
investigation, the importance of the tally slip was stressed by
the professional staff.\83\ Mr. Sullivan described the tally
slip this way: ``its main purpose is an assurance that the
numbers written on it were put there after the system had been
closed for further input and the numbers were static. It's
probably the most important quality control device in the
announcement of a vote.''\84\
---------------------------------------------------------------------------
\83\See Select Committee Hearing, Sep. 27, 2007, pp. 19-21.
\84\Sullivan interview.
---------------------------------------------------------------------------
The importance of the tally slip was amplified by Mr.
Sullivan's predecessor, Mr. Johnson, in another early hearing
of the Select Committee: ``there [is] no other proper
alternative to the announcement of the numbers and the
announcement of the result'' by the Chair other than from a
tally slip, which represents a vote tally that is the product
of a system that has been closed to further input and is thus
accurate at that point in time.\85\ Mr. McNulty himself
admitted that the failure to await that slip resulted in an
inaccurate announcement, and caused ``chaos in the House.''\86\
---------------------------------------------------------------------------
\85\Select Committee Hearing, Oct. 25, 2007, p. 25.
\86\Select Committee Hearing, May 13, 2008, p. 42.
---------------------------------------------------------------------------
As clause 2(a) of rule XX directs the Clerk to conduct a
vote by electronic device, the tally slip is the mechanism by
which the Clerk transmits the tally when the presiding officer
closes a vote. It also serves as a signal to the Chair that the
numbers on that paper represent the true and correct tally at
the time the vote was closed. The importance of the tally slip
is not intrinsic to the slip itself, but rather the slip
represents the ``de facto certification''\87\ provided by the
Clerk that the result is reliable and accurate at that point in
time.
---------------------------------------------------------------------------
\87\Id., p. 24.
---------------------------------------------------------------------------
The Select Committee does not believe that codifying the
tally slip will best serve the House over the long-term. If the
Clerk upgrades the EVS or there are other modifications to the
House chamber, there may very well be another mechanism for
transmitting this information to the Chair for the use in the
ultimate announcement of the result. However, the process and
protocol are of sufficient enough importance that their use
should be formalized.
Accordingly, the Select Committee recommends that the
Speaker include an announcement on the opening day of each
Congress regarding the importance of the Clerk's certification
that the vote tally is accurate, and the Speaker's expectation
that presiding officers will await that certification before
making their ultimate announcement of result.
The Speaker usually prints a series of policies in the
Congressional Record at the beginning of each Congress, many of
which provide standards for presiding officers.\88\ For
instance, the sixth such policy for this Congress deals
specifically with the conduct of votes by electronic device,
and is the origin of the policy regarding allowing Members in
the well to cast their votes before the ultimate announcement
of the result.\89\ The Select Committee's suggested policy
would be of similar character, as it also addresses the
efficiency and accuracy of the voting process.
---------------------------------------------------------------------------
\88\See, e.g., 153 Cong. Rec. 2 (daily ed. Jan. 8, 2007), pp. H59-
H61.
\89\Id, p. H60.
---------------------------------------------------------------------------
This approach has two benefits: first, because it is a
policy of the Speaker and not a rule, it permits easy
modification as circumstances in the House evolve; second, the
formalization of this policy will buttress presiding officers
in their efforts to ensure that the business of the House is
conducted fairly and forthrightly, particularly when they face
the normal range of pressures directed at presiding officers.
The ultimate lesson of Roll Call 814 is that while some
Members may not be happy with the outcome of a particular vote,
they must have confidence in the result. The formalization of
the policies and procedures regarding the tally slip in the
form of an announcement by the Speaker will go a long way to
ensuring that vote announcements are accurate, and thus instill
confidence in the process.
Appearance of ``FINAL'' on display board
The Clerk should remove the word ``FINAL'' from the display
on the electronic summary board. The Clerk's display of the
word has no legal or parliamentary significance. Furthermore,
the display can be a source of confusion when the word is
displayed before the vote is actually final.
Record of time for a vote
The Clerk should keep a record of the total time an
electronic vote was held open, which the Clerk will make
available to Members upon request.
Efficiency of an electronic vote
When the electronic voting system was instituted in 1973,
it promised a swifter and more efficient voting process.
Although certainly more swift than calling the roll, the full
promise of swifter votes has not been realized. This is the
case even though, over the years, the Leadership has repeatedly
urged Members to vote in a more timely manner. It remains
commonplace for 150 to 200 Members to be listed as ``not
voting'' at the expiration of the minimum time guaranteed under
the rules for a vote, especially on the first vote in a series
of votes. It is also commonplace, at the end of a vote, for
latecomers to straggle into the chamber one-by-one when the
Chair is attempting to announce the result. It can take the
Chair several minutes, and several attempted announcements, to
close the vote, long after the minimum time for voting has
expired. This troubling practice prolongs the vote and can
cause confusion about its finality.
Since the early 1990s, the Speaker has tried to support the
Chair's efforts to conduct swifter votes by encouraging Members
to be timely and refusing to honor requests from tardy Members
who call from outside the chamber seeking to hold open a vote.
Those efforts, however, were often accompanied by a renewed
commitment to ensure that all Members standing in the well
seeking to vote would be given the opportunity (in practice,
this commitment has extended to any Member in the chamber
seeking to vote, not just those standing in the well). As a
result, there has been little improvement in the timeliness of
Members' voting.
When seeking to close votes, the Chair continues to
confront the two competing principles that comprise the
foundation of the Chair's conduct of a vote: enfranchisement on
the one hand and efficiency (including swiftness, clarity, and
finality) on the other. This dilemma for the Chair was a
recurring theme among the witnesses interviewed during this
investigation. Ensuring efficiency has become a difficult task
for the Chair when the practice of the House--indeed its
culture--preserves for Members the right to vote even when they
are late. Often, in deciding when to leave their offices,
committee meetings, or other obligations and proceed to the
floor to cast a vote, Members look not to the clock but to the
number of Members who have not yet voted, thereby perpetuating
the practice of prolonged votes.
Although enfranchisement is rightly a tenet of House voting
practice, the responsibility to exercise a vote rests with the
Member and not the Chair. Reducing the Chair's responsibility
for ensuring that each Member has cast a vote would go a long
way to return timeliness to the conduct of votes in the House.
One way to accomplish that goal would be to eliminate the
practice of voting during an electronic vote by a well card.
The Chair would continue to exercise discretion as to when to
begin closing the vote after the minimum time has elapsed. Once
the Chair has established that Members present have finished
voting (such as by querying whether all Members have voted),
the Chair would declare that all voting machines shall close
after a specified grace period of, for example, 2 minutes.
Voting machines would automatically turn off after the
expiration of this grace period and the vote would be closed.
Removing manual voting by well card and the institution of
an automatic voting-machine shut-off after a specified grace
period would significantly reduce the Chair's responsibility
for ensuring that tardy votes are counted. Hopefully, a new
practice would evolve that fosters efficiency while preserving
the Chair's ultimate discretion in closing a vote (by allowing
the Chair to determine when the grace period will begin and
end).
Well voting during an electronic vote
At a minimum, the Speaker and the Clerk should examine the
practice of voting during an electronic vote by a well card
with a view towards minimizing the practice. Such examination
may include proposals to amend the Rules of the House to
restrict such practice. If well votes are taken during an
electronic vote, the Clerk should process and announce all well
votes or changes unless the Member specifically withdraws his
or her well card prior to it being processed.
Majority-Minority Communication
The Majority leadership should proactively consult with the
Minority leadership (either at the Member or senior floor staff
level) as soon as practicable upon learning of rostrum problems
to avoid miscommunication and suspicion regarding the source
and resolution of those problems.
increased training
The Select Committee recommends that the House institute
new training procedures regarding the rules, practices, and
precedents for voting. Furthermore, even more seasoned Members
should receive updated training as new rules are adopted or new
best practices emerge.
For all newly elected Members
The Clerk should conduct a walk-through of the EVS on the
House floor. This should include an explanation of the
responsibilities of each of the rostrum staff, the operation of
the EVS, and the process of voting. The Committee on House
Administration should include this in its curriculum of
training for incoming Members.
For any Member newly appointed by the Speaker to preside
The Speaker, the Parliamentarian, and the Clerk should
conduct a training session that should consist of a walk-
through of the House floor as described for newly elected
Members but with an emphasis on the rules, practices, and
precedents governing the Chair's responsibilities during a
vote, including the precedents requiring impartiality of the
Chair.
In addition, the Speaker and Minority Leader should
facilitate a periodic roundtable discussion among Members from
the Majority and Minority parties who have extensive experience
in the Chair and Members with less experience but who may be
interested in learning from more experienced presiding
officers.
For any Member newly announced as elected to Majority Leader, Minority
Leader, Majority Whip, or Minority Whip, as well as any staff
newly assigned to those positions
The Speaker, the Parliamentarian, and the Clerk should
conduct a training session that should consist of a walk-
through as described for newly elected Members but with an
emphasis on the rules, practices, and precedents governing the
responsibilities of the Leadership during a vote.
PART II--SUMMARY OF ACTIVITIES
Clause 1(d) of rule XI of the Rules of the House of
Representatives requires each committee to submit to the House
a report of that committee's legislative and oversight
activities, summarizing the actions taken and recommendations
made with respect to the committee's oversight plan. This part
of the report shall constitute the Select Committee's report on
its activities within the meaning of that rule.
Legislative Activities
The Select Committee has no legislative jurisdiction.
The Select Committee's Oversight Plan
The Select Committee's oversight plan was contained in its
initial report (H. Rept. 110-355) and is reprinted below:
The Select Committee plans to obtain information and hold hearings
necessary to carry out its responsibilities under H. Res. 611. Four
areas of investigation identified by the Select Committee are described
briefly here, though in no way are these four areas intended to limit
the Select Committee from following the evidence where it leads as it
conducts its investigation.
Persons on the Speaker's Dais and Persons Responsible for Conducting a
Vote
One major area of investigation for the Select Committee will be to
determine who is customarily on the Speaker's Dais and each person's
responsibility, including the presiding officer. Second, the Select
Committee will determine which of these persons have duties relating to
voting in the House and the Committee of the Whole, what those duties
are, and when, where, and how those duties are carried out. Third, the
Select Committee will determine the relationship between these persons
in their execution of their specific duties related to voting in the
House and the Committee of the Whole.
The Select Committee will also determine what other people,
including employees of the House who are not on the Speaker's Dais but
have duties related to voting in the House and the Committee of the
Whole; what those duties are; and when, where, and how those duties are
carried out. The Select Committee will also determine the relationship
between these persons and the persons on the Speaker's Dais in their
execution of their specific duties related to voting in the House and
the Committee of the Whole.
The Select Committee will also determine the duties and authority
of Members, leaders, and floor managers related to voting in the House
and the Committee of the Whole.
This information is important to understanding the events
surrounding the voting on the Motion to Recommit and to making such
recommendations to the House as may be necessary to define and protect
Members' voting rights.
Electronic Voting System
A second major area of investigation for the Select Committee is
the operation of the electronic voting system for recording Members'
votes in the House and the Committee of the Whole and the relationship
of the system's operation to the duties for voting exercised by
individuals on the Speaker's Dais and by individuals not on the
Speaker's Dais. Parts of this investigation will examine:
the tasks for which the electronic voting system was designed and
features of the hardware and software to accomplish those tasks,
including messages or reports on a vote before, during, and after the
vote;
the protocols for preparing and using the electronic voting
system in the daily sessions of the House and the Committee of the
Whole;
the protocols for individuals on the Speaker's Dais to interface
with the electronic voting system;
the Members' interface with the electronic voting system in
casting their votes;
the use of information, by Members, leaders, and floor managers,
generated by the electronic voting system during and after a vote; and
documented instances of mistakes in the electronic voting system
recording or not recording a Member's vote and accurately reporting
vote totals and of other errors related to voting.
This information is also important to understanding the events
surrounding the voting on the Motion to Recommit and to making such
recommendations to the House as may be necessary to define and protect
Members' voting rights.
Duration of a Vote
A third major area of investigation for the Select Committee is the
duration of a vote and the duties and authority of the presiding
officer and of other persons to determine when the opportunity of
Members to vote closes. Clause 2(a) of rule XX states: `* * * the
minimum time for a record vote or quorum call by electronic device
shall be 15 minutes.' Clause 9 of rule XX states: `The Speaker may
reduce to five minutes the minimum time for electronic voting on any
question * * *.' (Emphases added.) A vote may last longer than fifteen
minutes, five minutes, (or on occasions when a shorter time is used,
such as two minutes) in order to accommodate Members who were not yet
recorded or who wish to change their vote or perhaps for other reasons.
Clause 2(a) of rule XX also states: `A record vote by electronic device
shall not be held open for the sole purpose of reversing the outcome of
such vote.'
In House Practice: A Guide to the Rules, Precedents, and Procedures
of the House, a principal parliamentary reference of the House of
Representatives, the parliamentarians have summarized House precedents
to state:
* * * The Chair has the discretion to close the vote and to
announce the result at any time after 15 minutes have elapsed
or to allow additional time for Members to record their votes
before announcing the result * * *. Thus, no point of order
lies against the decision of the Chair in his discretion to
close a vote taken by electronic device after 15 minutes have
elapsed * * *.
Elsewhere in House Practice, the parliamentarians have summarized
other House precedents to state: ``A Member who has voted may change
his vote any time before the final announcement of the result.''
In addition, it has long been the practice of Speakers to insert in
the Congressional Record in the first few days of a new Congress a
statement of policies on aspects of the legislative process. Continuing
this custom in the 110th Congress, Speaker Pelosi announced policies
that were published in the January 5, 2007, Congressional Record.
Policy No. 6 deals with the conduct of votes by electronic device, and
continued in effect, with modifications, a policy first announced by
Speaker Gingrich on January 4, 1995. This policy states, in part:
* * * the Chair enlists the assistance of all Members in
avoiding the unnecessary loss of time in conducting the
business of the House. The Chair encourages all Members to
depart for the Chamber promptly upon the appropriate bell and
light signal. As in recent Congresses, the cloakrooms should
not forward to the Chair requests to hold a vote by electronic
device, but should simply apprise inquiring Members of the time
remaining on the voting clock. Members should not rely on
signals relayed from outside the Chamber to assume that votes
will be held open until they arrive in the Chamber. Members
will be given a reasonable amount of time in which to
accurately record their votes. No occupant of the Chair would
prevent a Member who is in the Well before the announcement of
the result from casting his or her vote.
A part of this area of investigation pertains to understanding the
authority of the presiding officer under the rules and precedents of
the House related to voting, as well as any informal practices
exercised under that authority. Another part of this area of
investigation relates to how Members learn whether time remains to
record or change their votes, how these votes are cast and recorded,
and how these votes are recorded in the electronic voting system.
This information is important to understanding the events
surrounding the voting on the Motion to Recommit and how the House has
balanced its accommodation of Members wishing to vote or change their
vote with bringing a vote to a close. Such information is important for
making such recommendations to the House as may be necessary to protect
Members' voting rights.
Sequence of Events
What is learned from the three areas of investigation described
above will enable the Select Committee to then fulfill the two purposes
for which it was created: based on an investigation of circumstances
surrounding the vote on the Motion to Recommit, report on actions by
Members, officers, or employees of the House engaged in the
disenfranchisement of Members in voting on the question, and recommend
changes to House rules and procedures necessary to protect Members'
voting rights.
The Select Committee will investigate the sequence of events
surrounding the vote on the Motion to Recommit to establish a time line
of events and to analyze these events within the context of the first
three areas of investigation. The sequence of events includes the
actions of Members in voting; the actions of persons on the Speaker's
Dais and of persons not on the Speaker's Dais related to the conduct
and duration of the vote; the operation of the electronic voting
system, including messages and reports from the Chair during and after
the vote and the relationship of paper to electronic records; and the
duration of the vote. As an aid to the Select Committee's
investigation, H. Res. 611 directed officers of the House to `preserve
all records, documents, recordings, electronic submissions, or other
material, regardless of form, related to the voting irregularities of
August 2, 2007.' The Office of the Clerk has provided communications to
the Select Committee and testified regarding the information and
material it has so far recovered, collected, and stored.
Oversight Activities
The Select Committee undertook those oversight activities
described below in furtherance of its investigation.
briefings held
On October 18, 2007, the Select Committee held a briefing
on the floor of the House entitled ``Member Briefing on Voting
in the House of Representatives--The Rostrum and the Electronic
Voting System: a `Walkthrough' by the Clerk of the House
Lorraine C. Miller.'' The Members of the Select Committee were
briefed on the operation of the EVS by the Clerk, her staff,
and the Parliamentarian and his staff.
interviews taken
The Select Committee and its staff conducted 24 interviews
between February 4 and April 16, 2008. Those interviews are
listed in the table below.
Interviews taken by the Select Committee
------------------------------------------------------------------------
Individual Interviewed Date(s) of Interview
------------------------------------------------------------------------
Frances Chippardi, Chief of Legislative Feb. 4, 2008
Operations, Office of the Clerk.
Ed Sorenson, Deputy Clerk, Office of the Feb. 4, 2008
Clerk.
Goldey Vansant, Chief of Legislative Feb. 4, 2008
Computing Systems, Office of the Clerk.
Allys Lasky, Assistant Journal Clerk........ Feb. 6, 2008
Mary Kevin Niland, Reading Clerk............ Feb. 6, 2008
Max Spitzer, Assistant Parliamentarian...... Feb. 6 & May 8, 2008
De'Andre Anderson, Assistant Tally Clerk.... Feb. 8, 2008
Kevin Hanrahan, Assistant Tally Clerk....... Feb. 8, 2008
Ethan Lauer, Assistant Parliamentarian...... Feb. 14 & May 9, 2008
Tom Wickham, Deputy Parliamentarian......... Feb. 14, 2008
George Kundanis, Deputy Chief of Staff, Feb. 15, 2008
Office of the Speaker.
Jay Pierson, Floor Assistant, Office of the Feb. 15, 2008
Republican Leader.
Rob Cogorno, Former Director of Floor Feb. 21, 2008
Operations, Office of the Majority Leader.
Jerry Hartz, Executive Floor Assistant, Feb. 22, 2008
Office of the Speaker.
Jo Marie St. Martin, General Counsel and Feb. 22, 2008
Director of Floor Operations, Office of the
Republican Leader.
Catlin O'Neill, Floor Assistant, Office of Feb. 25 & Apr. 16, 2008
the Speaker.
John V. Sullivan, Parliamentarian........... Feb. 27, 2008
Hon. Roy Blunt, Republican Whip............. Apr. 8, 2008
Hon. John A. Boehner, Republican Leader..... Apr. 9, 2008
Hon. Michael R. McNulty, Speaker pro tempore Apr. 9, 2008
during Roll Call 814.
Hon. Steny Hoyer, Majority Leader........... Apr. 16, 2008
------------------------------------------------------------------------
hearings held
On September 27, 2007, the Select Committee held a hearing
entitled ``Voting in the House of Representatives.'' The Select
Committee heard testimony from the Honorable Lorraine C.
Miller, Clerk of the House of Representatives. She was
accompanied by her counsel, Russell Gore, and other members of
her staff.
On October 25, 2007, the Select Committee held a hearing
entitled ``Voting in the House of Representatives--Rules,
Procedures, Precedents, Customs and Practice.'' The following
individuals testified: Charles W. Johnson, former
Parliamentarian of the House of Representatives and Mark
O'Sullivan, Chief Tally Clerk of the House of Representatives.
On May 13 and 14, 2008, the Select Committee held an
investigative hearing on Roll Call 814. The following
individuals testified: Mr. Kevin Hanrahan, Assistant Tally
Clerk; The Honorable Michael R. McNulty, Speaker pro tempore
during Roll Call 814; The Honorable Steny Hoyer, Majority
Leader; Mr. John Sullivan, Parliamentarian; Mr. Ethan Lauer,
Assistant Parliamentarian; Mr. Max Spitzer, Assistant
Parliamentarian; Mr. Jerry Hartz, Executive Floor Assistant,
Office of the Speaker; Ms. Catlin O'Neill, Floor Assistant,
Office of the Speaker; and, Mr. Jay Pierson, Floor Assistant,
Office of the Republican Leader.
Publications
Organizational Meeting on Adoption of Committee Rules;
Consideration of Interim Report; and Hearing on Voting in the
House of Representatives. Meeting and Hearing. September 27,
2007. PRINTED.
Interim Report of the Select Committee to Investigate the
Voting Irregularities of August 2, 2007. Report. September 27,
2007. PRINTED, H. Rept. 110-355.
Member Briefing on Voting in the House of Representatives--
The Rostrum and the Electronic Voting System: A ``Walkthrough''
by the Clerk of the House Lorraine C. Miller. Briefing. October
18, 2007. PRINTED.
Voting in the House of Representatives--Rules, Procedures,
Precedents, Customs, and Practice. Hearing. October 25, 2007.
PRINTED.
Interviews Conducted During the Course of the Investigation
of the Voting Irregularities of August 2, 2007. 2008. PRINTED
Investigative Hearing Regarding Roll Call 814, Day 1.
Hearing. May 13, 2008.
Investigative Hearing Regarding Roll Call 814, Day 2.
Hearing. May 14, 2008.
PART III--COMMITTEE CONSIDERATION
Committee Consideration
The Select Committee met in open session on September 25,
2008, and adopted this report by a record vote of 6 yeas and no
nays.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Select Committee to list the
record votes on the motion to report legislation and amendments
thereto. A motion by Mr. Delahunt to adopt this report and
transmit it to the House was agreed to by a record vote of 6
yeas and no nays. The names of Members voting for and against
follow:
--YEAS-- --NAYS--
Mr. Delahunt
Mr. Davis
Ms. Herseth Sandlin
Mr. Pence
Mr. LaTourette
Mr. Hulshof
PART IV--APPENDIX
Materials Cited
congressional publications
Wm. Holmes Brown & Charles W. Johnson, House Practice: A
Guide to the Rules, Precedents, and Procedures of the House.
2003.
Michael L. Koempel & Judy Schneider, CRS Memorandum to
Select Committee Chairman, Concordance of Questions and Answers
from Hearings of the Select Committee to Investigate the Voting
Irregularities of August 2, 2007, (Dec. 2007).
Michael L. Koempel, Jacob R. Straus & Judy Schneider, CRS
Report RL34570, Record Voting in the House of Representatives:
Issues and Options (July 3, 2008).
Jacob R. Straus, CRS Report RL34366, Electronic Voting
System in the House of Representatives: History and Evolution
(May 8, 2008).
John V. Sullivan. Constitution, Jefferson's Manual, and
Rules of the House of Representatives of the United States,
110th Congress. H. Doc. 109-157. 2007.
127 Cong. Rec. H9682-9685 (daily ed. Aug. 3, 2007, vol. 1).
126 Cong. Rec. H9650 (daily ed. Aug. 2, 2007, vol. 2).
discovery
Legislative Computing Systems, Office of the Clerk. Using
the Electronic Voting System: U.S. House of Representatives:
Tally Clerk User Manual. August 30, 2004.
Miller, Lorraine C. Clerk's Briefing to House Committee on
House Administration. Aug. 16, 2007. CLERK 467-494.
Miller, Lorraine C. Draft Memorandum from Lorraine Miller,
Clerk of the House to House Committee on House Administration.
Sept. 2007.
Sullivan, John V. Reflections on Roll Call 814. Received by
Select Committee Jan. 4, 2008.
hearings, meetings, and briefings
Organizational Meeting on Adoption of Committee Rules;
Consideration of Interim Report; and Hearing on Voting in the
House of Representatives. Meeting and Hearing. September 27,
2007.
Member Briefing on Voting in the House of Representatives--
The Rostrum and the Electronic Voting System: A ``Walkthrough''
by the Clerk of the House Lorraine C. Miller. Briefing. October
18, 2007.
Voting in the House of Representatives--Rules, Procedures,
Precedents, Customs, and Practice. Hearing. October 25, 2007.
Investigative Hearing Regarding Roll Call 814, Day 1.
Hearing. May 13, 2008.
Investigative Hearing Regarding Roll Call 814, Day 2.
Hearing. May 14, 2008.
interviews
Staff Interview of De'Andre Anderson, Assistant Tally
Clerk, Feb. 8, 2008, Interviews Conducted During the Course of
the Investigation of the Voting Irregularities of August 2,
2007. 2008
Staff Interview of Kevin Hanrahan, Assistant Tally Clerk,
Feb. 8, 2008, Id.
Staff Interview of Ed Sorensen, Deputy Clerk, Feb. 4, 2008,
Id.
Staff Interview of Catlin O'Neill, Floor Assistant, Office
of the Speaker, Feb. 28, 2008, Id.
Member Interview of John V. Sullivan, Parliamentarian of
the House, Feb. 27, 2008, Id.
Member Interview of the Honorable Michael R. McNulty, M.C.,
Apr. 9, 2008, Id.
Interview of the Honorable Steny Hoyer, Majority Leader of
the House, Apr. 16, 2008, Id.
<all>