[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
MEETING TO DISCUSS MATTERS PERTAINING TO THE CONTESTED ELECTION IN THE 
                                 13TH 
                   CONGRESSIONAL DISTRICT OF FLORIDA

=======================================================================

                                MEETING

                               BEFORE THE

                   COMMITTEE ON HOUSE ADMINISTRATION

    TASK FORCE FOR THE CONTESTED ELECTION IN THE 13TH CONGRESSIONAL 
                          DISTRICT OF FLORIDA

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               ----------                              

              MEETING HELD IN WASHINGTON, DC, MAY 2, 2007

                               ----------                              

      Printed for the use of the Committee on House Administration


                       Available on the Internet:
   http://www.gpoaccess.gov/congress/house/administration/index.html












                   COMMITTEE ON HOUSE ADMINISTRATION

                ROBERT A. BRADY, Pennsylvania, Chairman
ZOE LOFGREN, California              VERNON J. EHLERS, Michigan
MICHAEL E. CAPUANO, Massachusetts      Ranking Minority Member
CHARLES A. GONZALEZ, Texas           DANIEL E. LUNGREN, California
SUSAN DAVIS, California              KEVIN McCARTHY, California
Vacancy
                 S. Elizabeth Birnbaum, Staff Director
                William Plaster, Minority Staff Director

    Task Force for the Contested Election in the 13th Congressional 
                          District of Florida

                  CHARLES A. GONZALEZ, Texas, Chairman
ZOE LOFGREN, California              KEVIN McCARTHY, California






















   ELECTION TASK FORCE MEETING TO DISCUSS MATTERS PERTAINING TO THE 
    CONTESTED ELECTION IN THE 13TH CONGRESSIONAL DISTRICT OF FLORIDA

                         WEDNESDAY, MAY 2, 2007

                          House of Representatives,
                         Committee on House Administration,
                                                    Washington, DC.
    The committee met, pursuant to call, at 10:33 a.m., in room 
1310, Longworth House Office Building, Hon. Charles Gonzalez 
presiding.
    Present: Representatives Gonzalez, Lofgren, and McCarthy.
    Staff Present: S. Elizabeth Birnbaum, Staff Director; 
Charles Howell, Chief Counsel; Janelle Hu, Election Counsel; 
Matt Pinkus, Professional Staff/Parliamentarian; Kristin 
McCowan, Chief Legislative Clerk; Robert Henline, Staff 
Assistant; Gineen Beach, Minority Election Counsel; and Fred 
Hay, Minority General Counsel.
    Mr. Gonzalez. Good morning, everyone. I am going to call 
the first meeting of the task force on Florida 13 to order. And 
first I would like to place everyone on notice that Congressman 
Lofgren, who is chair of a subcommittee--is that correct? And 
that you have a mark-up, so we are going to try to get through 
this, but if she needs to report to the other committee, then 
we are going to make some accommodation. But I wanted you to 
understand that that is the situation today.
    The purpose of the meeting today is to answer the question 
of the next step for this particular task force, and that is, 
do we proceed at this point in time with the investigation of 
the election in Florida 13 back in November 2006? The chair 
will recognize himself for an opening statement of 2 minutes, 
and then I will go with Mr. McCarthy and then Ms. Lofgren.
    It is a simple question in many ways and a difficult one, 
though, in many other ways. We do know that the undeniable 
facts that everyone can agree on is that there was an 18,000 
undervote in Florida 13 that constituted 15 percent of the 
ballots cast, which is very, very unusual. I think everybody 
knows something went wrong. The question was, what was the 
culprit? What was the reason--ballot design, the electronic 
voting machine malfunctioning and so on? We are also very aware 
of the pending litigation in Florida. And as I speak, I have 
not been notified that there has been any resolution to the 
question that was posed to the Florida appellate court.
    What is the proper role of this particular task force? And 
what is the prudent thing to do under the circumstances that we 
face this morning and today? My observation, of course, is 
simply that this task force has an independent and separate 
obligation and purpose, separate from the judicial branch. Do 
we have precedent that basically the committee or a task force 
or any panel defers until the completion of any appellate 
review at the State level? You have some cases where that has 
happened. You have had other cases where that has not been the 
case. I think we are actually given free reign to make that 
determination that we believe will serve the best interest of 
the United States Congress and in particular the United States 
House of Representatives, which constitutionally is charged as 
being the final arbiter as to who will actually occupy a seat 
in that august body.
    I would like to proceed today, of course, with the opening 
statements, and then we will get into a discussion. We were 
scheduled for today's meeting for 1 hour, and I would like to 
complete all action by then. But the first question truly is, 
what does this task force do at this point in time? Do we then 
initiate the investigation? Do we move forward? Or do we simply 
just have this holding pattern under which we have been 
operating for some time? With that, I will recognize my 
colleague, Mr. McCarthy, for his opening remarks.
    Mr. McCarthy. Well, thank you, Mr. Chairman. And I 
appreciate the opportunity to give opening remarks. The 
question is, do we move forward? And you want to analyze from 
the perspective of what the Chairman said; inside Florida 13, 
there were 18,000 undervotes. There were also other races that 
had more undervotes. So there is a question, did something go 
wrong within there? If we look from what has gone further, we 
find that we have 433 members currently in Congress. They have 
all gotten here by having a certificate certified by the State. 
This is not the closest race inside the Congress. There were 
other races that were closer. The machines that were used, 
there were 11 other congressional districts inside Florida that 
use the exact same machines. And what did Florida do to look, 
to see, since the election took place, by certifying? They have 
had parallel testing. They did an audit with eight experts, 
Ph.D.s, looking within--having the source code, going through. 
I think from our meetings prior, we have found that Congressman 
Vern Buchanan, like all of us, shares the same presumption that 
each of us currently have, that we got here through our 
certification from the State, the background checks within.
    I think much of the history comes back and shows that it is 
the design of the ballot as you go through and look at this. I 
appreciate the work that this committee has done. In our 
meeting prior to looking back, getting the experts in, we have 
had the opportunity even from other bills within this committee 
to have one of the experts, the Ph.D.s, that did the 
independent study that came through. I think Florida has done a 
tremendous job of analyzing from the parallel testing to the 
independent audit to get to this conclusion as we go forward. 
But I appreciate you calling this so we can look into this and 
have this debate. Thank you.
    Mr. Gonzalez. Ms. Lofgren.
    Ms. Lofgren. Well, I will be very brief. The threshold 
issue is whether we proceed further or not, and I am mindful 
that the House has an independent obligation to determine its 
own membership and the validity of contested elections under 
the Federal Contested Elections Act and also under the 
Constitution.
    Having said that, that doesn't mean that we will--if we 
move forward--necessarily disagree with the state of affairs 
here in the House. I do note--and I would like to ask unanimous 
consent that it be made part of the record that, in the last 
Congress, the counsel for the committee, the House 
Administration Committee, sent a letter to the superior court 
of California, the County of San Diego in the Bilbray race, 
asserting that the State courts have no jurisdiction to act on 
matters.
    [The information follows:]
    
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    
    Ms. Lofgren. Now, I put this in the record to say, you 
know, it is one extreme because I don't believe that is the 
case. The courts do have a role, but it has been 6 months now. 
We don't have a decision, and I think we need to sort through 
what happened. The 18,000 undervote far exceeds the margin of 
victory of our colleague Congressman Buchanan, and we don't 
know whether we will be able to find out what happened. But I 
think we need to try to find that out, honestly. I will say 
that I take the obligation of serving on this committee very 
seriously. I served on the Ethics Committee for eight years, 
and this is a similar type of obligation where you cannot act 
as a partisan. You have to act in the interests of the 
institution. And I will say, in the eight years that I served 
on the Ethics Committee, with the exception of one minor 
procedural vote, we had nothing but unanimous votes because all 
of us took that responsibility for the institution very 
seriously, and I do that in this obligation as well, and I am 
hopeful that whatever we decide today, that we will move 
forward in a way that is nonpartisan, that is fair and that 
keeps in mind our obligation under the Constitution and to this 
institution. And I appreciate being recognized for those brief 
comments, Mr. Chairman.
    Mr. Gonzalez. Thank you very much, Ms. Lofgren.
    We will be operating under a 5-minute rule. It does not 
mean that we won't have a second round of 5 minutes and such. 
But I was explaining this yesterday. I think all of us as 
Members of Congress once in a while are invited to be judges of 
high school debates many times, and the participants in the 
debate never know which side of the arguments they actually 
will be debating. And I actually like to proceed under that 
fashion. In other words, if we look at both sides, if we were 
proponents of not moving forward and if we were proponents of 
moving forward, and analyze it in that particular light. From 
the beginning, my big question, of course, has always been, if 
you are the contestant, the burden of proof rests with the 
contestant. At this stage, and after all these months, and I 
guess now the Florida appellate court has had the case pending 
for probably approximately 120 days or so with no resolution on 
a discovery point. There has been parallel testing, but it was 
at the direction of an interested party, and that has always 
been my biggest concern. And that is one part of the argument. 
What is gained by simply not moving forward at this point in 
time? Well, we could let the Florida court resolve it, send it 
back to the trial court and any of us that are familiar with 
court proceedings understand the cost that is involved and, 
further, the time that is going to be required to--if in fact 
the appellate court directs a trial judge to allow the 
contestant, in that case, the plaintiff, to conduct their own 
testing under certain confidentiality requirements on trade 
secrets. I have never been involved in any proceeding where an 
interested party to a lawsuit is the only party that is allowed 
the direction of the testing, the selection of the experts and 
so on. As a general rule, both sides would get that 
opportunity, and in a final analysis, if the court is truly 
confused by the conflicting testimony of the experts, you do 
bring in someone to assist you. I am not real sure when you 
take up the proposition that we do nothing of where that gets 
us. There is an open question today. When I was a young person, 
and I went to the State senate to watch my father, and we would 
go to the University of Texas, which I eventually attended, 
inscribed over the threshold is, ``And the truth shall set you 
free.'' and I remember the discussions with my father, and I 
said, if the truth should set us free, why are you 
filibustering against Jim Crow segregationist laws? And what he 
told us many times, the truth that we seek is only to remove 
doubt, to give some certainty so that you move forward. And 
that is the way I view the role of this task force. What is to 
be gained if we move forward without specifically indicating in 
what manner? Because that is the second question. I think some 
resolution, and what we set people free from will be free of 
doubt and free of uncertainty.
    The election took place in November 2006. We are now into 
May. It is a 2-year term. My position is simply, I don't see 
what is to be gained by delay, but I am still open to an 
argument as to why that would be advantageous and beneficial to 
the House of Representatives and of course our obligation as a 
task force with this particular committee.
    Ms. Lofgren. Mr. Chairman, could I offer a motion, and then 
we will debate this? Because the threshold question is whether 
to proceed; and then, if we decide to proceed, how to proceed. 
I would move that the task force initiate an investigation of 
Florida's 13th Congressional District election.
    [The information follows:]

        Election Task Force Motion #1--Initiate an Investigation

                              may 2, 2007

                        (Offered by Zoe Lofgren)

    I move that the Task Force initiate an investigation of Florida's 
13th Congressional District election.

    Mr. Gonzalez. Okay. Well, the motion on the floor then 
obviously addresses that first question. And I would yield to 
either of my colleagues.
    Ms. Lofgren. If I may speak in favor of the motion just 
briefly, and I do want to hear from our colleague, Mr. 
McCarthy. There has been some review of the code. We are aware 
of that. But there is additional testing that has not been 
done, and that is the point of contention in the Florida court 
on what amount of testing can be done. It seems to me that 
since it is May 2 and this election happened in November, that 
it is important to--as the Chairman has said, to reach a 
conclusion on this matter. This is a 2-year term and we are 6 
months past the election time. I have had a chance to review 
the precedents and to note that the Congress has not routinely 
deferred to State courts when there was a contest. And in the 
case of the 105th Congress, Dornan v. Sanchez, there was no 
State judicial action. In Young v. Mikva, the House proceeded 
even though the Illinois Supreme Court was pending. And it is 
very clear that, although State courts can sometimes be of 
value to the Congress, it is not a presidential requirement 
that we wait forever for courts to act. I would hope that if we 
proceed, if this motion is successful, that we might develop 
protocols and get whatever additional testing is done and reach 
a conclusion if all goes smoothly very promptly. I think in the 
briefing that we attended, there was a proposal that all of 
this could be done in 45 days if things go smoothly. And 
obviously, I think, if that could happen, that would be a very 
good thing just to be able to get some dispassionate review of 
this and resolve it and get it behind us would be I think the 
right thing to do. So I don't think there is any additional 
purpose to defer to the State proceedings. There is no 
indication that they are going to act. They have not acted yet, 
and the action is actually a procedural motion that proceeds 
further action. And so, therefore, I think this is the right 
thing to do. It is a wise thing to do. And I think, in the end, 
if this motion succeeds, I will have an additional motion that 
I hope would get the support of every member because this has 
got to be done properly, and I thank the gentleman for 
yielding.
    Mr. Gonzalez. Mr. McCarthy.
    Mr. McCarthy. Mr. Chairman, if I could first ask a couple 
questions without taking the 5 minutes from the standpoint of 
just some personal inquiries, one that I had asked from the 
last meeting we had. Just to clarify, because creating this ad 
hoc committee, at times we use different phrases, and letters 
that I have received and knowing I am just a freshman, I just 
want to make sure. Ad hoc and task force are the same words, is 
that correct, from the standpoint----
    Mr. Gonzalez. My understanding----
    Mr. McCarthy. Definition-wise.
    Mr. Gonzalez. The letter that created this particular body 
refers to it as a task force, and so I have continued using 
that terminology. We could call it an election panel and so on 
or ad hoc panel. But my preference is we call it a task force 
only because our beloved past Chair Juanita Millender-McDonald, 
that was the term that she used in her letter, and I would like 
to keep to that. So, legally speaking, I think your question 
really goes to----
    Mr. McCarthy. I am just trying to redefine. Do actions 
taken here, do we go back to the full committee? Or this is the 
empowerment of this? This is, under rule XVI, created?
    Mr. Gonzalez. Ms. Lofgren.
    Ms. Lofgren. My understanding is we have been empowered as 
a task force. And I think they use the task force nomenclature 
in the Dornan-Sanchez race as well to make this decision. I 
mean, we can--if you convince us, we can vote no on the motion 
I have just offered, but we are empowered to proceed or not to 
proceed, and if we proceed, empowered to decide how to proceed 
under the rule and following the precedence of the House.
    Mr. McCarthy. Okay. Just for clarification. And then I know 
we had talked at one time, maybe we would just have legal 
counsel, just as we move forward I guess.
    I guess, I would then get to--just one other personal 
inquiry if I can. When you say this motion, I move the task 
force to initiate an investigation, for a definition of 
investigation, you refer to a little later that, if this were 
to pass, then we would decide what investigation meant; is that 
correct?
    Ms. Lofgren. Well, I am going to--if this motion is 
approved, I am going to make a further motion about how to 
proceed that would involve a dispassionate entity assisting us.
    Mr. McCarthy. Okay. Now I will be on my 5 minutes, I guess, 
to debate the first question.
    I come to this committee from the standpoint that I think 
we do have the institution and the respect of the institution 
to keep the responsibility there, that this is not to be 
political on any basis. So I never want to derive from a 
political predetermined position. And the question that we had 
was, do we move forward? So, from my perspective, I had to sit 
back from our last meeting where we have had both entities that 
had representation lay out their points. And when I sit and 
look first that you have a race, that you have 18,000 
undercounted votes. I look within that ballot; there is an 
attorney general race in there that had more. Then I asked the 
question, did anybody else use these machines? There were 11 
other congressional districts that used these exact same 
machines. One being one district down with a new member, 
Mahoney, that was a close race; not as close as this, where the 
opponent's name wasn't even on the ballot. So I raise the 
question, what did the State do to certify these? Because when 
we go in that day and raise our hand and everybody gets sworn 
in, just as Congressman Buchanan was, was there anything done 
to analyze this because the undercount raises a question that 
people should look at? Doing the parallel testing, which the 
State did, where they take the machines and go and test, I 
raise the question, which machines did you use? I asked the 
question to Ms. Jennings' attorney, were they actually able to 
select some of the machines? I asked the same question to Mr. 
Buchanan's counsel, and they didn't select any. They just 
allowed the process to pick. Then I raised the question, well, 
did you select the machines that had the undercount in the 
highest precincts and others? And the answer was, yes. So that 
was one test that--okay, so we went further. But then there was 
the question that was raised, but you need to know the source 
code. And that is part of the argument, through the source 
code, could somebody break in here? And then I look to, what 
did Florida do? Florida went out and got eight experts to 
analyze the source code, came back with a unanimous decision 
within there, and in the parallel, testing nothing showed a 
problem and said there was not a problem in here.
    Now we did not have before us in the last meeting any of 
those eight individuals that could be here, that did the audit. 
And you had raised the point just a little earlier that the 
State is doing this, and the State is part of the lawsuit. So 
the argument on the other side was, we didn't have an 
opportunity to pick the individuals. So we had an interesting 
situation, though. In one of our hearings that Ms. Lofgren had 
on H.R. 811, one of those experts was here, and I raised the 
opportunity because he was here. His name was David Wagner, and 
I was able to ask him if he had the source code, and he said, 
yes. And what was interesting, there was another individual 
here Mr. Zimmerman that represented an entity that is part of a 
lawsuit now within this. I think the lawsuit is Fedder v. 
Gallagher. And what was interesting in this conversation we 
took, and I have the transcripts here, I asked Mr. Zimmerman 
what did he think of Mr. Wagner? Just thinking, okay here is an 
independent, did the State go out and pick people? And Mr. 
Zimmerman who is in a lawsuit against him there said, I think 
he is a very fantastic scientist, who I go to for information 
from time to time. So then it raises the question that if 
these--these were independents, and even if somebody had a 
choice on the other side, they probably would have selected 
this individual.
    I mean, when I looked at the different races, and I looked 
at one in Connecticut that only had 80 votes, I still haven't 
found from what the State has done, parallel testing, releasing 
the source code in that manner and doing the audit, that I 
haven't found any evidence that there had been a problem. You 
can say from the aspect of having the undervote and also in the 
attorney general race that there was a ballot design problem. 
But I am trying to take it from the perspective, I have to make 
a decision based upon the evidence. From the same aspect that 
it has been a while, those constituents have a right to be 
represented. They have a Congressman sworn in. The State has 
gone through the process. If something has shot up through the 
parallel testing, rightfully so, go in. If in this independent 
audit, if one of the eight had said, I disagreed, I would have 
said, well, let's probe there a little further. If Mr. 
Zimmerman had said, that Mr. Wagner, he is always on this other 
side, I would never use that man--actually hires the individual 
and believes he is a great scientist. Then we had another Ph.D. 
there that had nothing to do--didn't do the study or anything 
else. And I asked him the question, and then I probed further, 
have you read the study? And he said, yes, and he said it is 
probably one of the most thorough ones I have ever read. So 
analyzing what is before me, do we go through an investigation 
which has its own ramifications and we--having the respect of 
this House and maintaining it, that everyone gets here and gets 
certified going in, the State doing parallel testing doing an 
audit with outside entities, with scientists looking at the 
source code and no evidence before us saying there is a problem 
with any of those investigations, I would have to argue that I 
think there has been an investigation. There has been tax money 
used. They have looked at the machines. They actually took the 
machines that had the highest undervote count in the worst 
precincts that the opponent got to select and not one evidence 
came forward. So from that perspective, are you doing a 
disservice to the constituents? Are you doing a disservice to 
Congressman Buchanan, trying to put--from that perspective? I 
think this House--and I appreciate being able to have that last 
meeting because I thought you handled that the correct way, 
bringing both entities in and just having them lay out, one, 
their arguments, got to have the question before, should we 
move forward? If you move forward, what would you do? And I am 
just saying from gathering that information, hearing what is 
before us, we have had an investigation. I think it is time to 
move on and let the constituents continue to be represented.
    Mr. Gonzalez. Thank you Mr. McCarthy.
    Mr. McCarthy. So I officially ask for a no vote.
    Ms. Lofgren. I would just say a couple of things. In the 
briefing, we were able to review many affidavits from voters 
who reported that their votes were not tallied. Now, in looking 
at the review that was made, what has been clear is that it was 
not a complete review. Mr. Wagner from the University of 
California I think has acknowledged as a very able scientist--I 
mean, no one has suggested that he is not, and I do not. The 
issue isn't about him. It is about the scope of his review. And 
as my colleague from California knows, the scientists, the 
computer scientists from Stanford University across the Bay 
from Cal have suggested that the review needs to be broader 
than was engaged in. And I believe that that is, in fact, the 
case. I also believe that this review, which has really been 
stymied by the courts in Florida, can be accomplished very 
promptly. I think it should be. This has gone on too long. And 
I think we need to move forward. I think we need to adopt this 
motion.
    I realize that the gentleman disagrees on this, and I do 
respect that. But I am hopeful that, if this motion passes, 
that you will agree on how to proceed because we need to do 
this transparently and fairly, and that is my commitment. And I 
yield back.
    Mr. Gonzalez. Thank you very much, Ms. Lofgren.
    My own impression of the briefing that we had, of course, 
was the excellent job that the lawyers did, but there was--
well, the materials we received from the contestant contained 
an affidavit by I think two Ph.D.s, one was from Rice and I 
forgot the other--that in essence, did disagree with the manner 
and method or protocols that were utilized in the testing. So I 
don't think that you have unanimity as to the validity of the 
manner or method of testing. And I still go back to something I 
think it is fundamental. The contestant does have the burden of 
proof. The contestee has a motion to dismiss pending before 
this task force, this committee before Congress. Somewhere down 
the road, we have to make a recommendation to the whole 
committee. The same parties that resisted allowing the 
plaintiff in the Florida case from following through in 
conducting the tests according to what they thought were the 
appropriate standards in order for them to meet their legal 
standard still believed that it was a legitimate exercise and 
undertook it themselves. And I think that is where we are 
today.
    The problem is, again, those individuals that did the 
testing and the manner in which was basically dictated, 
approved and directed by one side. And I don't believe that 
that is probably the best way to reach some sort of conclusion, 
that if you are from the outside looking in, you would say that 
is a fair process. I think that is the fundamental question for 
me. And how do we accomplish that? And of course, that is not 
something that we get into right now. But definitely I think we 
all have something in mind based on what was shared with us at 
the briefing which was about two and a half hours and was truly 
enlightening. My sense is that we move forward, and we can 
discuss in what manner and going into the specifics that Ms. 
Lofgren has already touched on to some extent. At this time, I 
would yield to either of my colleagues if they have anything 
that they wish to add at this point before we would take a 
vote.
    Mr. McCarthy. The only thing that I would add--I know you 
raised the point that one side--that a study was done by one 
side, but let's look at elections. We elect secretaries of 
States to be the independent when it comes to the election. 
When you refer to the other side, that is not Congressman 
Buchanan doing it. That is who the people chose to be the 
independent person. Now if you have a disagreement from the 
process, you have to challenge the secretary of State, but I 
believe the secretaries of States are independents. As you go 
across this country, you will find that because they are the 
ones that certify all elections across the board. So I 
understand your argument, but I don't believe that that is just 
in the process that that is who the people select to be their 
independent counsel. They don't go to, okay, we certify 
opponent A as the winner, so they got to go select who these 
independent Ph.D.s were who went to go do this research. To me, 
they are independent. To me, they were the people entrusted by 
the State of Florida to look at it in a nonpartisan manner and 
come to that conclusion. So I mean, I just disagree with that 
argument. Now, had a parallel test shown something wrong, let's 
go move forward, had an independent audit, or had Florida not 
done either of those; yes, I think the undervote determines 
that we should look at it. But if they have tested it and have 
gone through it, what more could you do then with it?
    Mr. Gonzalez. And I understand, and I don't mean to cast 
aspersions on any elected official or election official in 
Florida. I think my fundamental issue comes down to that you 
have someone who has a vested interest in the outcome of the 
litigation, and that is problematic to me. And I know that they 
will proceed in the fashion that they believe is fair, but 
nevertheless it is going to lack something, but the opposing 
party who also has a vested interest, there is a way of 
actually addressing those competing interests. And to the 
extent that, at least appearance-wise, it would not appear fair 
to allow and to vest all the authority into only one of the 
parties to litigation, they do have a protectable interest. And 
it may be reputation. It may be policy. It may be politics, all 
of that. And I think if we can somehow remove that part from 
this equation of trying to gain the truth as to exactly what 
happened that day, did the machines malfunction and so on, by 
allowing a process that removes that specter of an interested 
party of someone with a vested interest again. And I think that 
is my biggest concern, and it has been from the beginning. And 
I think the individuals have addressed it well, and I know that 
Mr. McCarthy and I, as well as Ms. Lofgren, have had informal 
discussions early on. I know that staff has looked into it way 
before we have started getting formally engaged in the process. 
Ms. Lofgren, do you have anything further?
    Ms. Lofgren. No. I am advised that actually after our 
colleague Ms. Harris left the position as secretary of State, 
it actually became an appointed position. But I don't think 
that changes the argument. I just am--I think we need to put 
this to rest, and I don't want to unduly delay this debate, but 
I do think that, you know, we need to find out whether we can 
find out what happened, and I would yield back before the 
Chairman----
    Mr. Gonzalez. Ms. Lofgren, do you have a motion?
    Ms. Lofgren. The motion is to move that the task force 
initiate an investigation of Florida's 13th Congressional 
District.
    Mr. Gonzalez. Call for a vote. All in favor will answer 
aye.
    Ms. Lofgren. Aye.
    Mr. Gonzalez. Aye. And all opposed, nay.
    Mr. McCarthy. Nay.
    Mr. Gonzalez. The motion carries. And as I pointed out and 
I think Ms. Lofgren also touched on and we have had these 
discussions when we had the briefing and such, if we moved 
forward, what would be the parameters? What is it that we seek 
to accomplish? And I think we have touched on the fundamental 
question of which is the most expedient, fair, complete manner 
of proceeding. There has been discussion because we lack the 
expertise, obviously, and the staff to bring in an entity, an 
agency, an individual, an expert to assist us in this 
particular endeavor. And then allowing that individual some 
latitude, but in real questions, that may arise regarding the 
protocols the individuals and so on, and working in conjunction 
with the attorneys, by the way, if there is a question that 
still it would be up to the chair working in consultation with 
the members of the task force to resolve.
    But I think the first issue is, where are we going to go at 
this point in time? I would like again to direct our attention 
to seeking the assistance of someone, again, an agency, 
department, an individual, and we have already had this 
discussion somewhat during the briefing. And I do want to 
welcome our colleague, Mr. Lungren, and we will be following 
the rules of the committee. You are a member of the full 
committee, so you will be able to participate. Of course, you 
won't be able to vote.
    Ms. Lofgren. Mr. Chairman, I would like to offer a motion.
    [The information follows:]

           Task Force Motion #2 (As Amended)--How to Proceed

                              may 2, 2007

                        (Offered by Zoe Lofgren)

    I move that the chairman be authorized and directed to secure the 
assistance of the Government Accountability Office, which shall be 
requested to design and propose testing protocols to determine the 
reliability of the equipment used in the FL-13 election, taking into 
account recommendations by the contestant and contestee. The Task Force 
shall approve any testing protocols prior to execution by the GAO. The 
GAO may procure such expertise and assistance from governmental or non-
governmental experts and entities as it deems necessary, and shall 
report its findings to the task force.

    Mr. Gonzalez. You may proceed.
    Ms. Lofgren. I move that the Chairman be authorized and 
directed to secure the assistance of the Government 
Accountability Office. The GAO shall be requested to design and 
propose testing protocols to determine the reliability of the 
equipment used in the Florida 13 election, taking into account 
recommendations by the contestant and the contestee. The 
Chairman, after consultation with the task force members, shall 
approve any testing protocols prior to an execution by the GAO 
and that the GAO may procure such expertise and assistance from 
governmental or nongovernmental experts and entities as it 
deems necessary, and shall report its findings to the task 
force. If I may speak briefly in support of this motion, the 
Government Accountability Office, as we know, is independent. 
It is a part of the legislative branch, but it is not a 
partisan organization. And in fact, they fight quite jealously 
to be independent of the House. They are objective, and they 
have expertise that we do not have. So I do think that their 
involvement will make sure that the analysis is done in a 
completely nonpartisan way.
    As for the contestants, I would note that Ms. Jennings' 
counsel suggested basically competing experts and that each 
party be granted the right to have discovery, and I don't think 
that is the right way to proceed, frankly. We will just end up 
with competing experts, and we will still have the lack of 
expertise that we need to proceed. So I think to allow the 
contestant and the contestee to make their pitches to--if you 
will, to the GAO, is appropriate. They obviously both have a 
great interest in the outcome. But the GAO should decide how to 
proceed in terms of the testing protocols. I would note that 
the Chairman needs to be empowered to approve the testing 
protocols but that he also needs to be required to check in 
with the task force. And it is my expectation that the 
Chairman, if there were minor issues, obviously he is going to 
consult with us and proceed.
    If there is actually a substantive issue, I would expect 
that he would come back, and we would have a formal vote. And I 
know the way the Chairman has proceeded so far is fair and 
dignified, and that has been recognized by all the members of 
the committee. And I know that he would proceed in that way.
    Deputizing the GAO to use outside experts is another 
important element. I would note that there have been some 
discussions about what role NIST should play. And it is 
interesting. I recently--I have never met with the Director of 
NIST, and I didn't do it for this purpose. As Mr. McCarthy 
knows, we have been trying, wrestling with the issue of the 
voting machine bill. And there was a suggestion that they play 
a role in software, which they didn't want to do. And so, Mr. 
Holden, I met with him to see, you know where did they see 
themselves in the voting machine bill? And it became very clear 
as we--they are not--they are not a regulatory body. They are 
going to run away from anything that involves just setting 
standards. That is what they do. And they are right because 
everybody trusts them because that is all they do. And I would 
not want to disrupt that role for them.
    On the other hand, if they are asked by the GAO to do 
something that is within their purview, they can do that. And 
that is why, you know, I--there was some informal discussion 
that NIST should play the lead role. They can't do that. They 
don't want to do that. But this allows them to be--to play 
their appropriate role, and I would expect that the GAO would, 
in fact, involve them in an appropriate role.
    Finally, I know that the minority thinks that we should not 
proceed. But if we are going to proceed, and we voted to do so, 
I think this addresses the issues that have been discussed and 
guarantees that we will proceed in a way that is dispassionate, 
that is informed by expertise, and that is not a partisan 
endeavor. And that is why this motion is crafted as the way it 
is. And I am hopeful that we can all support it. And with that, 
I would yield back to the Chairman.
    Mr. Gonzalez. Mr. McCarthy.
    Mr. McCarthy. I agree with you from the standpoint, I 
didn't like the concept that both parties went and did their 
own investigation because, well, you know, Mr. Chairman, being 
a judge, you can get anybody, and we are going to end up going 
nowhere. On reading this, I have concerns. But I think there is 
a place that we can get to that--and I would hope, too, that we 
move in an unanimous basis going forward. Yes, I disagreed with 
doing the study because I haven't seen the evidence. Having 
said that, we did bring up NIST. I also think the National 
Security Agency could do part of this, too, and maybe do some 
of the research, NSA. And I will tell you that somebody at NIST 
gave that idea because they are in America's cryptological 
organization to coordinate, direct, perform highly specialized 
activity. There are some very good experts. I mean, they are 
protected from that standpoint.
    I would say, based upon our argument prior, wouldn't our 
first action be--if we have a disagreement about the audit, I 
mean, if I took our last debate, the majority believes that the 
audit, the scope was not correct. I believe from that 
perspective that it was. Now, none of us have the expertise of 
the NSA or them or maybe even the GAO. I would believe our 
first step, why would we have the GAO analyze that audit 
because that would come down to what the whole argument being, 
one entity from Stanford said, you didn't have it all the way. 
You had eight experts, Ph.D.s, that said this was all fine. Why 
don't we first take the GAO? If they need expertise, that they 
can communicate to the NSA and to NIST, to analyze the audit 
first. Because this is what I am thinking, I am thinking down 
the road. Whatever happens I would hope, at the end of the day, 
it would be unanimous no matter what the end of the discussion 
would be, because I think that is for the institution. On a 
national--if I look back on this in history, you wouldn't want 
to always--I believe the Chairman has a right to do things, but 
you want to make sure you give them full authorization. This 
committee is small. I think we need to move forward in those 
steps. And I would feel very comfortable with you coming to me 
on the Floor and saying, oh, we are doing this. If there was 
ever some type of disagreement, we come back with a vote. But 
if we took the GAO, just to come back to that, on a timeline 
basis because if you are going to come up with standards and go 
through everything, we could be here another 6 months or a 
year. But if they analyze that, you also--say they come back 
and they say these standards, they take your position, these 
standards are wrong, you would have to maybe come up with the 
testing protocols if we had to move forward. But if they came 
back and said, this is all correct, our answer may be there as 
well. So I don't know if I would offer a friendly amendment to 
scope this down, giving the GAO the power, the Chairman to go 
to the GAO, the GAO has the right to go to NSA, to NIST that 
they see experts to analyze the Florida audit from their 
procedures and what went forward.
    Would that be acceptable?
    Ms. Lofgren. Well, if I may----
    Mr. Gonzalez. Ms. Lofgren.
    Ms. Lofgren. I think that the final paragraph of the motion 
authorizing the GAO to procure such expertise and assistance 
from governmental or nongovernmental experts and entities as it 
deems necessary would include the NSA if they think that is 
necessary.
    Mr. McCarthy. That is fine.
    Ms. Lofgren. So we don't need an amendment. I never thought 
of that, honestly. And I must confess I am a little skeptical 
that the NSA would want to do that. But if that is--if the GAO 
thinks that is a good thing to do, fine, I don't have an 
objection to that.
    As to the review of what has already been done, I think 
that clearly is within the purview of this, and I expect that 
they will do that. But I also expect that they would do 
protocols for the additional testing that has been asked by the 
contestant. If we were satisfied with what has been done, we 
wouldn't be proceeding. And so, you know, if they come back and 
say, we, you know, we have looked at it, and this is all we 
need to do; that is the report we are going to get. I know 
that, because they are independent, they are going to tell us 
what--they are going to call it as they see it. And that is the 
beauty of having the GAO do this. So I hope that that satisfies 
the gentleman.
    Mr. Gonzalez. Mr. McCarthy, if you want to respond.
    Mr. McCarthy. Yes, the only thing I would say, moving 
forward, I can't agree to what this is because the scope is 
narrow. I mean, the argument--I am trying to take what I heard 
earlier, why you came to the conclusion from--different from 
the conclusion I had where I didn't see any evidence. The 
Chairman's argument was, he raised the doubt because the 
Secretary of State was the one being sued, and they selected 
the individuals. And then you raised the debate inside the 
meeting that we had prior that--from a Stanford person. So I 
thought we were kind of at this point and this point being 
said, GAO being viewed as an independent entity being able to 
look for experts on the outside, who have greater expertise 
than we do on how they analyze, these Ph.D.s and others going 
through, looking at what the State had done. Shouldn't we 
first--if we had doubt of whether the State was right or not in 
that procedure or whether those were independent, which the 
question you raised, wouldn't that answer that question?
    Mr. Gonzalez. And I will respond. You still have the 
problem that I think I pointed out from the beginning. And that 
is, you have the contestant who has the burden of proof who is 
requesting specific testing in order to meet that burden. And 
that testing incorporates protocol or a manner that is 
different than what has already being conducted. I don't 
disagree with you that I think GAO is going to be looking at 
the large body of evidence that is already in existence. And 
there is no doubt in my mind that the contestee's attorney is 
going to make a very strong, strong argument to pretty much 
restrict GAO's role to reviewing what is already in existence, 
passing some sort of judgment and then keeping to a bare 
minimum what might be some additional testing. That is what--I 
mean--that is what I think are the arguments that are going to 
be taking place at GAO, and I think GAO is probably going to 
put something together, and they will come back to us because, 
in the final analysis, we really have to look at that protocol 
and take the arguments that have been advanced, and then they 
move forward with whatever we decide. So I think what you are 
suggesting still leaves unresolved, and that is the central 
question, is the best thing is you have an impartial neutral 
party that has the resources and the expertise? And they don't 
have the authority to go out there and bring those individuals 
into this process and go beyond that which is already in 
existence, which one party, the party that has the burden has 
found insufficient for the purpose of their evidence gathering 
because, eventually, they are going to have to still make their 
case to us on the motion to dismiss that is pending as filed by 
the contestee. But I do want to recognize Mr. Lungren.
    Mr. Lungren. Thank you very much, Mr. Chairman. I 
appreciate your courtesy, and I sort of feel like an alternate 
juror here. It is kind of difficult when you only have one on 
our side, and if he is unable to participate for me to come in 
without knowing things. So that is why I am trying to attend 
these. I am sorry I was late. I was over in Judiciary where we 
have to get back to I know.
    Ms. Lofgren. Did they take up my bill yet?
    Mr. Lungren. No. No. We are still on the COPS bill. I think 
I was the only dissenter on that. And I know we are not 
supposed to refer to the transcript from the business meeting 
that we had, but at least I think I can say that I was the one 
who brought up NIST because it seemed to be a good idea at the 
time. Since that time, we have discussed with NIST as well, my 
staff has, in some extended conversation with them, and 
something we learned from that goes to I think the issue that 
is before us. When we talked with NIST, they talked about, they 
were to do a study--if they were to do a study, it would take 
something like 15 man years to do something, what we were 
talking about doing with the source code analysis and so forth. 
That suggests to me it is going to take a long period of time 
if the source code is ever allowed out, as I understand the 
company has fought against that, except to allow it to go to 
the bipartisan or nonpartisan or whatever you want to call that 
panel down in Florida.
    So if that is the inevitability that it is going to take a 
long period of time, and the gentlelady from California 
suggests we would like to get this thing wrapped up in a 
reasonable period of time, that might suggest that that is 
impossible if that is what the ultimate requirement of 
technical analysis is. That is why I think the gentleman from 
California's comment about at least making it clear to GAO that 
they should look at the Florida report to see if it does give 
them a body of information upon which they can render a 
judgment makes sense. That might allow us to get some answers 
within the time frame the gentlelady suggests or somewhat 
beyond that as opposed to saying these answers can only be 
ascertained after these 15 man years, or whatever that means, 
down the road where we are going to be sitting here 18 months 
from now on the eve of a new election trying to decide what 
happened here. So I guess from my observation as the nonbinding 
party to this hearing, we should make it at least clear to GAO 
that what the gentleman from California said is within their 
purview and may even be a priority for them because it may give 
us some guidance earlier than anything else we can see because 
I think all of us on the full committee and in the full 
Congress want this thing resolved within a reasonable time 
frame. And after our conversations with NIST, I was concerned 
that, oh, my God, not only don't they want to do it, but they 
are saying, technically it would take--in my terminology--
forever to do. We would never get to the definitive decision we 
have to make. So I would just offer that. The gentleman from 
California has raised a prospect to what GAO might be able to 
do. It may very well be the way for us to at least get guidance 
as to whether we could make a decision within a reasonable 
period of time.
    Mr. Gonzalez. Ms. Lofgren.
    Ms. Lofgren. I would just say this, that the contestant is 
not going to be empowered to do discovery under this motion. 
They are going to be empowered to ask an impartial entity to 
consider their request to do a particular form of testing that 
is recommended by scientists at Stanford University; that they 
believe, according to the Stanford scientists, it would take 
about 45 days if all things went smoothly. I don't know. I am 
not a computer scientist. But I think that--I hope that this 
can be done in 45 days. If the gentleman is right, and it 
takes, you know, 2 years, well, you know, we will be in a very 
different--Mr. Buchanan will never face a vote of this 
committee and nor will Ms. Jennings. So we can't know that now 
because none of us can predict the future. But I would just 
say, it is my--I am not going to change the motion. But it is 
my anticipation, my belief that we can put it in a committee 
report if there is a committee report. The GAO, as its first 
order of business, is, they are going to take a look at what 
has already been done. And of course they are going to do that. 
But we also expect that they will do--allow the contestant to 
have some kind of dynamic testing that has not yet occurred, 
and then get back to us and then give us a report. And I expect 
whatever the report is, it will be unanimous, I mean, when we 
accept it. I don't think--this is not going to be a politicized 
endeavor at all. And I don't want that, and I don't think you 
want it, and I don't think the Congress needs that. And I would 
thank the gentleman for yielding.
    Mr. Gonzalez. Mr. Lungren.
    Mr. Lungren. I may be the only one here who was here in the 
1980s, and I just don't want us to revisit that sorry situation 
because it did poison this House and changed the dynamic in the 
House of Representatives for the rest of the time I was here. 
And I don't think we want to repeat that or get even close to 
that. So I thank the gentlelady.
    Mr. Gonzalez. Mr. McCarthy.
    Mr. McCarthy. Yes, Mr. Chairman. Having heard that and 
looking back, I guess if we are going to look to history, I 
would only raise this issue, and I would ask that you take it 
as a friendly amendment or I will offer it as a motion after 
this, that the testing protocols are subject to the task force 
approval, because the way I read it here, we empower the 
Chairman and authorize them, and in the end, you are empowered 
to do the design and propose the testing protocols. So we are 
setting ourselves up for, in the next meeting, ``well, I didn't 
get a look at it.'' I am just thinking trying to take arguments 
away. I just think that, from the design and proposed testing 
protocols, that that is a committee, and knowing that I am 
one--one side, too; on the other, you still have the advantage 
from that perspective, but I think, in an open process, it 
would be looking at history that it would show more----
    Ms. Lofgren. Would the gentleman yield on that point?
    Mr. McCarthy. Sure.
    Ms. Lofgren. This is the reason why I crafted it in this 
way. And if there are tiny issues, like what day we are going 
to report or something, that I don't want us to have to meet to 
make a decision on a comma. On the other hand, if this is 
something substantive, I expect the Chairman to reach out to 
us. And I would expect also that the staff would reach out to 
staff so that we are not called on the Floor to make a decision 
that we don't really have the background to make; and that if 
there is any disagreement, that we would then have a formal 
meeting. So that is what I intend by this to happen. And I 
think that if the Chairman would confirm that that is how he 
intends to proceed, I mean, there would be a big stink if it 
were other than how I have described it, and I trust the 
Chairman to operate in that way that is fair.
    Mr. Gonzalez. Let me go ahead and address your concern. 
When it says consultation, I take it quite seriously and for a 
lot of reasons. One, I don't have all the answers, and it is 
wonderful when it is collective. Much of what we have in this 
particular motion, to be real honest with you, was developed as 
a result of questioning by members of the minority party at the 
briefing which--the point is well taken, I can assure you, 
anything of any import. When I say ``consultation,'' it may 
require a meeting, but if it is something minor, I still will 
consult.
    And, of course, we have rules, and I am always concerned 
about running afoul of the rules. To what extent can I 
informally run something by you that is not totally 
significant, but it a question and someone is asking us to 
resolve it, I would like to have some latitude on that. And you 
all would trust me that if it is of the nature to the degree 
that I think would require a meeting, I assure you that we can 
conduct the meetings.
    They are not true hearings; we don't have witnesses, 
subpoenas, testimony that can be called in very short order, 
so--I can assure you of that. I am not the author of the 
amendment, but I do believe that it provides to allay any fears 
that you might have.
    There was one other point that I want to make abundantly 
clear, and that is existent evidence and testing and such. I 
don't want any of today's conversation that we have had here to 
be interpreted as this task force identifying any one piece of 
evidence that may be in existence as being somewhat superior or 
that everyone would defer to.
    I understand that there is a body of evidence out there 
already that GAO will definitely incorporate. But I don't want 
anyone to look at the transcript of today's meeting and then 
deduce somehow that, well, if we just look at what has already 
been done, we can move forward and it is all ended.
    To a certain extent I understand that that evidence is 
there, it is going to be incorporated, it is part of the 
analysis. But I anticipate that the concerns expressed by the 
contestant as to further testing, if GAO and whoever they bring 
into the picture in the way of additional expertise, determines 
that it is appropriate, relevant, material, legitimate, then 
that we would move forward on that basis.
    Mr. McCarthy.
    Mr. McCarthy. Well, I have got to tell you, I am getting 
frustrated now because I am coming in from a standpoint that, 
in the end, I want a unanimous decision. That means we work on 
a commonsense basis. With no undue respect, Mr. Chairman, I 
don't ever question you not coming to me. You have treated me 
that way all the way from the very beginning.
    But this place runs on rules, and when you look back at 
something, the rule says you are empowered to do this in the 
end result. And then I hear from Ms. Lofgren, who said, well, I 
see the GAO doing what Stanford said. To me, that seems like 
something predetermined.
    I did not want to come to this committee to have something 
predetermined. So--from that standpoint, I thought I was trying 
to offer something that could get us to a point that had a 
unanimous consent, that we are looking at this on that basis; 
and I just have to be very honest with you that I don't find 
this to be that. And strictly from the standpoint that we are a 
small committee, it is 2 to 1, there should never be a fear of 
meeting, but we should never start a basis with the rules of a 
disadvantage from that one standpoint. And I just think, from 
that perspective, I feel very frustrated.
    Ms. Lofgren. Mr. McCarthy, the chairman has just handed me 
a piece of paper suggesting that we say the task force shall 
approve. I would accept that as a friendly amendment, but with 
this caveat.
    I don't really know how this is going to work, but if it 
ends up having to meet to approve commas, or things that are 
minor, ends up delaying the process, then I am going to suggest 
that we come back into session and go back to the original 
motion. Because we want to get this done and we don't want to 
have a meeting every day for something that doesn't matter; 
whereas we do want to have a meeting and approve unanimously 
anything that is substantive.
    So with that understanding, I would accept the chairman's 
suggestion on the change in the motion that would read, ``The 
task force shall approve any testing protocols prior to 
execution by the GAO,'' which I think does address the 
gentleman's issue.
    Mr. Gonzalez. Without objection, the original motion is 
amended.
    Mr. McCarthy, at this point I think we have had a really 
good-faith discussion all along the way. I am not going to do 
anything to jeopardize that. I don't think your request is 
unreasonable.
    Obviously, Congresswoman Lofgren is agreeable to that 
amendment, so the protocol, the final protocol as set out, will 
require, obviously, a meeting of the task force. Mr. Lungren 
will be welcome to attend that.
    So, with that, do we have any other remarks or comments? We 
are running 5 minutes late. Otherwise, the motion is on the 
table.
    All in favor, answer aye.
    All opposed.
    Any further business?
    If not, then we stand adjourned. Thank you very much.
    [Whereupon, at 11:50 a.m., the committee was adjourned.]

                                  
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