[DOCID: f:hr175.110]
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110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-175
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DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE TWENTY-FIRST CONGRESSIONAL DISTRICT OF FLORIDA
_______
June 6, 2007.--Referred to the House Calendar and ordered to be printed
_______
Mr. Brady of Pennsylvania, from the Committee on House Administration,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H. Res. 459]
The Committee on House Administration, having had under
consideration an original resolution dismissing the election
contest relating to the office of Representative from the
Twenty-first Congressional District of Florida, reports the
same to the House with the recommendation that the resolution
be agreed to.
DISMISSING THE ELECTION CONTEST IN THE TWENTY-FIRST CONGRESSIONAL
DISTRICT OF FLORIDA
The Committee on House Administration, having had under
consideration an original resolution dismissing the election
contest against Lincoln Diaz-Balart, reports the same to the
House with the recommendation that the resolution be agreed to.
COMMITTEE ACTION
On, May 8, 2007, by voice vote, a quorum being present, the
Committee agreed to a motion to report the resolution favorably
to the House.
COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 3( c)(1) rule XIII of the Rules
of the House of Representatives, the Committee states that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
STATEMENT ON BUDGET AUTHORITY AND RELATED ITEMS
The resolution does not provide new budget authority, new
spending authority, new credit authority, or an increase or
decrease in revenues or tax expenditures. Thus, clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
the provisions of section 308(a)(1) of the Congressional Budget
Act of 1974 are not applicable.
STATEMENT OF FACTS
On January 3, 2007, Frank J. Gonzalez (Contestant) filed a
Notice of Contest with the Clerk of the House of
Representatives captioned ``Frank J. Gonzalez, Contestant, v.
Lincoln Diaz-Balart, Contestee pursuant to the Federal
Contested Elections Act (``FECA'').\1\ Contestant was the
Democratic nominee for the seat in the Twenty-First
Congressional District of Florida on November 7, 2006. The
other principal candidate for the Twenty-First Congressional
District was incumbent Republican Lincoln Diaz-Balart
(Contestee). On November 20, 2006, the Florida Elections
Canvassing Commission certified the results: Contestee received
66,784 votes and Contestant received 45,522 votes. The Florida
Secretary of State issued the Certificate of Election
certifying Contestee as the winner of the Twenty-First
Congressional District seat on November 22, 2006.
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\1\ 2 U.S.C. Sec. 381-96.
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BASIS OF CONTEST
In the Notice of Contest, Contestant alleges that the
official election results for the Twenty-First Congressional
District of the State of Florida are incorrect because of
irregularities associated with the electronic voting machines
used in the election. Specifically, Contestant avers that the
electronic voting machines used did not accurately record votes
cast. In support of this argument, he asserts that the
electronic voting machines produced unreliable and incorrect
results based on a theory that these machines were hacked or
had their data tabulations altered by electronic means.
Contestant also alleges that an accurate recount of the votes
could never be conducted because the electronic voting machines
used in this election were not equipped with a verified voter
paper audit trail. Further, Contestant contends the vote totals
are unreliable based on his assertions that the Supervisor of
Elections for Broward County failed to comply with certain
testing and fielding requirements for electronic voting
machines pursuant to Florida law.
STANDING
To have standing under the FCEA, a contestant must have
been a candidate for election to the House of Representatives
in the last preceding election and claim a right to Contestee's
seat.\2\ In the instant case, Contestant was the Democratic
nominee and his name appeared as a candidate for the Twenty-
First Congressional District on the official ballot for the
November 7, 2006 election, satisfying the standing requirement.
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\2\ 2 U.S.C. Sec. 382(a).
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TIMING/NOTICE
The Notice of Contest has been served upon the Contestee
and filed with the Clerk of the House of Representatives on
December 20, 2006.
RESPONSE BY CONTESTEE
On January 17, 2007, Contestee filed a Motion to Dismiss
Contest of Election, in response to Contestant's notice
contesting the results of the 2006 General Election for the
Twenty-First Congressional District of the State of Florida. In
his motion, Contestee seeks to have this election contest
dismissed based upon Contestant's failure to timely file the
Notice of Contest with the Clerk of the House of
Representatives pursuant to the filing requirements under FCEA.
ANALYSIS
To survive a motion to dismiss, Contestant must proffer
allegations that, if proven, would have altered the election
outcome. In his Notice of Contest, Contestant presented the
Committee on House Administration (Committee) with allegations
that the electronic voting machines used in the election did
not record votes accurately. In support of his assertions,
Contestant relies on affidavits collected from voters in
Precinct 151, Pasco County by John Russell who was a candidate
for United States Representative for Florida's Fifth District.
Like Contestant, John Russell also filed a Notice of Contest
before this Committee where he maintains that the electronic
voting machines used in his election recorded votes
inaccurately. Contestant provides the Committee with results of
Russell's own canvass and affidavit gathering process of the
individuals who had cast ballots in precinct 151, which he
believes revealed a discrepancy in the Election Day vote
totals. Russell maintains that this discrepancy is evidence of
inaccurate vote totals and sufficient to place in doubt the
election results for Florida's Fifth Congressional District.
Contestant contends that the evidence obtained by Russell also
places his election results in doubt because electronic voting
machines without a verified paper audit trail were also used in
the Twenty-First District and, therefore, must have
inaccurately recorded the votes.
Contestant's reliance on allegations of electronic voting
machine error in another Congressional District is irrelevant
and not persuasive. The precinct Contestant refers to is Pasco
County Florida's 151 precinct and is located in Florida's Fifth
Congressional District, not in Florida's Twenty-First District.
Even if Contestant is able to prove the voting machines used in
precinct 151 did not record votes accurately, it does not
establish that the electronic voting machines used in
Contestant's race are inherently unreliable and failed to
record votes accurately.
Contestant also alleges that the intent of the voters and
the vote tally could not be accurately discerned because the
electronic voting machines used in the instant election were
not equipped with a voter verified paper audit trail.
Specifically, Contestant argues that only with a voter verified
paper audit trail: (1) could a voter determine whether the vote
which he or she cast reflected the vote that was intended to be
cast; and (2) could election results be validated. The fact
that Contestant would have preferred that voters be given the
benefit of a verified paper audit trail adds no weight to his
claim.
In November 2006, numerous state and federal candidates
were elected on electronic voting machines that were not
equipped with a verified paper audit trail. For decades states
have used mechanical and electronic voting equipment that does
not provide for a paper audit trail. These systems have not
been demonstrated to be inherently unreliable. States by law
may choose to require a paper audit trail, but the mere absence
of a paper trail is not a basis for setting aside an election.
A contestant's musing about the vulnerability of a voting
system to hacking or fraudulent manipulation does not form the
basis for a cognizable claim to the office. Such claims are in
essence no different than a claim that the ballots boxes could
have been stuffed in an election that used paper ballots. A
notice of contest must contain specific credible allegation(s)
of misconduct or irregularity in the election in order to
overcome the presumption of regularity.
Additionally, Contestant accuses the Supervisor of
Elections for Broward County of failing to comply with Florida
law relating to the testing and fielding for electronic voting
machines. Contestant's allegation of misconduct and non-
compliance by certain election officials is irrelevant unless
it can be shown to have affected the outcome of the election.
Contestant's personal lack of confidence in how the election
was administered does not form the basis for a cognizable claim
to the office. While Contestant may believe the Supervisor of
Elections for Broward County did not perform certain voting
machine testing, he failed to provide any information
demonstrating that Broward County election officials violated
any laws associated with machine testing, or that these alleged
violations affected the outcome. Contestant's allegations are
no more than unsupported speculation and his claims do not cast
sufficient doubt on the results of the election to merit
investigation. For the Committee to come to any other
conclusion would be to remove the presumption of regularity
that attaches to the state certification and would make all
elections open to contest and investigation based on mere
conjecture or speculation.
CONCLUSION
For the reasons discussed above, the Committee therefore
concludes that this contest should be dismissed.
MINORITY VIEWS
While we agree with the majority that this election contest
is wholly without merit, and should be dismissed without
further delay, we submit these views because we believe that,
in addition to the numerous substantive defects of this
contest, its procedural failings are also fatal and sufficient
to warrant dismissal on their own. Pursuant to the FCEA, a
sufficient and timely Notice of Contest must be filed with the
Clerk of the House and served upon Contestee before the
Committee can proceed to review and make determinations
regarding the allegations and grounds of an election contest.
FCEA requires contestants to file their notice of contest with
the Clerk of the House within 30 days of the election results
having been declared. This rule allows members and their
constituents to know the date beyond which the election can no
longer be challenged.
Section 382(a) of the FCEA:
(a) Filing of notice. Whoever, having been a
candidate for election in the last preceding election
and claiming a right to such office, intends to contest
the election of a Member of the House of
Representatives, shall, within thirty days after the
result of such election shall have been declared by the
officer or Board of Canvassers authorized by law to
declare such result, file with the Clerk and serve upon
the contestee written notice of his intention to
contest such election. (emphasis added)
Under Florida law, the Florida Elections Canvassing
Commission is the body authorized to declare all election
results. On November 20, 2006, the Florida Canvassing
Commission certified the results of the election for the
Twenty-First Congressional District and declared Lincoln Diaz-
Balart the winner, thereby triggering the 30-day time period
for filing an election contest with the House of
Representatives. Accordingly, anyone wishing to contest the
results so declared was obligated to do so by filing a contest
with the Clerk on or before December 20, 2006. Though
Contestant's Notice of Contest and certificate of service is
dated December 20, 2006, this is not the date it was filed.
The transaction log for the vendor that handles mail
delivery for the House of Representatives reveals that the
Notice of Contest was not received by the House until December
28, 2006. It was not received by, that is filed with, the Clerk
until January 3, 2007. This is outside of the 30-day window the
statute allows for filing. Simply mailing the contest within
the 30-day period does not constitute filing, and is not
sufficient to meet the statutorily imposed deadline.
While mailing does suffice for service of other kinds of
pleading, it does not suffice for the initial filing of the
contest. We believe the proper interpretation of FCEA requires
the document actually be in the possession of the Clerk within
the prescribed period. Section 382 clearly distinguishes
between filing and service--requiring that a notice of contest
be filed with the Clerk within 30 days and served on Contestee
within this time period. This distinction exists for a reason
and is reiterated in Section 384 which allows mailing within
the required period to suffice for other pleadings, but
explicitly states that these modes of service are acceptable
for pleadings other than the notice of contest:
(a) Modes of service. Except for the notice of contest,
every paper required to be served upon the attorney
representing the party, or is not represented by an attorney or
upon a party shall be made:
* * * * * * *
(3) by mailing it addressed to the person to be
served at this residence or principal office. Service
by mail is complete upon mailing.
(b) Filings of papers with clerk. All papers subsequent to
the notice of contest required to be served upon the opposing
party shall be filed with the Clerk either before service or
within a reasonable time thereafter.
Obligating actually filing, as opposed to simply mailing,
the notice of contest within 30 days allows all Members to know
with certainty the date beyond which their elections can no
longer be challenged. To allow contests filed after this date
to be considered creates uncertainty for Members and extends
the period in which they can be challenged. It also contradicts
the plain language of the statute, and should not be permitted.
Vernon J. Ehlers.
Daniel E. Lungren.
Kevin McCarthy.
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