[House Report 104-852]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     104-852
_______________________________________________________________________


 
          DISMISSING THE ELECTION CONTEST AGAINST CHARLIE ROSE

                                _______
                                

 September 26, 1996.--Referred to the House Calendar and ordered to be 
                                printed

_______________________________________________________________________


   Mr. Thomas, from the Committee on House Oversight, submitted the 
                               following

                              R E P O R T

                             together with

                           SUPPLEMENTAL VIEWS

                       [To accompany H. Res. 538]

    The Committee on House Oversight, having had under 
consideration the resolution (H. Res. 538), dismissing the 
election contest against Charlie Rose, report the same to the 
House with the recommendation that the resolution be agreed to.

                            COMMITTEE ACTION

    On October 25, 1995, 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 2(l)(3)(A) of rule XI 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 accompanying this report does not provide 
new budget authority, new spending authority, new credit 
authority, or an increase or decrease in revenues of tax 
expenditures and a statement under clause 2(l)(3)(B) or rule XI 
of the Rules of the House of Representatives and section 
308(a)(1) of the Congressional Budget Act of 1974 is not 
required.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee states, 
with respect to the resolution, that the Director of the 
Congressional Budget Office did not submit a cost estimate and 
comparison under section 403 of the Congressional Budget Act of 
1974.

        OVERSIGHT FINDINGS OF COMMITTEE ON GOVERNMENT OPERATIONS

    The Committee states, with respect to clause 2(l)(3)(D) of 
rule XI of the Rules of the House of Representatives, that the 
Committee on Government Reform and Operations did not submit 
findings or recommendations based on investigations under 
clause 4(c)(2) of rule X of the Rules of the House of 
Representatives.

                    TASK FORCE ON CONTESTED ELECTION

    Pursuant to Rule 16(b) of the Rules of Procedure of the 
Committee on House Oversight, the Honorable Bill Thomas, 
Chairman of the Committee, established a Task Force on February 
8, 1995, to examine the documentary record, to receive oral 
arguments, and to recommend to the Committee, the disposition 
of an election contest filed pursuant to the Federal Contested 
Election Act, 2 U.S.C. Sec. Sec. 381-96 (1988), by Mr. Robert 
Anderson (contestant) against Mr. Charlie Rose (contestee).

                           STATEMENT OF FACTS

Introduction

    This report relates to the election contest filed 
concerning the 1994 election for the House of Representatives 
seat for the Seventh District of North Carolina. As discussed 
below, this election contest arises under the United States 
Constitution, Article. V, Sec. 1, and the Federal Contested 
Election Act. 2 U.S.C. Sec. Sec. 381-96.

1994 election for the Seventh District of North Carolina

    The principal candidates for the seat in the House of 
Representatives in the election for the Seventh Congressional 
District of North Carolina on November 8, 1994 were incumbent 
Democrat Charlie Rose and Republican challenger Robert 
Anderson. The official election returns showed Mr. Rose with a 
plurality of 3,821 votes, with Mr. Rose receiving 62,670 votes 
and Mr. Anderson 58,849 votes. The congressional election 
coincided with local elections, including a very competitive 
contest for sheriff.

Proceedings involving North Carolina agencies

    Following the elections, on November 28, 1994, Mr. Anderson 
filed a consolidated election protest and complaint against 
Robeson County election officials with the North Carolina State 
Board of Elections (``SBE'') on November 28, 1994 in accordance 
with North Carolina state law.\1\ The complaint alleged largely 
the same particular irregularities later included in his 
contest filed with the House of Representatives. The complaint 
requested, among other things, that the SBE refrain from 
certifying the election returns, that an investigation be 
conducted of alleged election irregularities and violations of 
election laws, and that a new election be ordered.
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    \1\ Mr. Anderson chose not to file a complaint with the Robeson 
County Board of Elections, alleging that such a protest would have been 
futile in that many of his complaints concerned allegedly improper 
actions by board members as well as ineffective or illegal board 
policies. While North Carolina regulations encourage filing of election 
complaints at the local level, the SBE also has authority to consider 
any allegations of election irregularities. See N.C. Gen. Stat. 
Sec. 163-22; see also In re Judicial by Republican Candidates for 
Election in Clay County 264 S.E.2d 338 (N.C. Ct. App.), cert. denied, 
267 S.E.2d 672 (N.C. 1980); Sharpley v. Board of Elections, 209 S.E.2d 
513, 14-15 (N.C. Ct. App. 1974). The fact that the SBE opted to refer 
the matter to the North Carolina State Board of Investigation (``SBI'') 
for inquiry demonstrates that neither agency believed Mr. Anderson had 
waived any rights to challenge the election.
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    On November 29, 1994, the SBE held a hearing concerning the 
compliant and voted to delay certification of the election. 
After Mr. Anderson left the meeting, however, a previously-
unintroduced attorney for Mr. Rose addressed the board urging 
that they reconsider their decision, arguing that the delay in 
certification would harm Mr. Rose's then-pending candidacy for 
the office of Minority Leader in the 104th Congress. Following 
this testimony and telephone calls from additional people 
connected with the state Democratic Party, the SBE then 
reversed its vote to delay certification.
    Even before Anderson's filing, however, on November 18, 
1994, the SBE had directed the North Carolina State Bureau of 
Investigation to conduct an investigation of Mr. Anderson's 
charges. Subsequently, the SBI dispatched investigators to 
Robeson County to conduct interviews and investigations and to 
review election materials. The SBI agent-in-charge then 
summarized his view of the evidence and forwarded the summary 
along the raw investigative materials to the District Attorney 
responsible for Robeson County, Luther Johnson Britt, III.\2\ 
Mr. Britt then prepared a letter summarizing his view of the 
SBI materials for the SBE.\3\
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    \2\ The SBI agent-in-charge allowed Mr. Britt to direct, in part, 
the scope of the investigation, especially the inquiry into allegations 
of bribery.
    \3\ It should be pointed out that Mr. Britt, an elected Democratic 
official, refused to meet with Mr. Anderson to discuss the allegations, 
although there was evidence that he discussed the case with staff for 
Mr. Rose.
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Proceeding before the Committee on House Oversight

    On December 28, 1994, Mr. Anderson filed a Election Contest 
(hereinafter ``Anderson's Notice'') with the Committee under 
jurisdiction granted by the U.S. Constitution \4\ and the 
Federal Contested Election Act (``FCEA'').\5\ Subsequently, the 
Committee appointed a Task Force on February 8, 1995 to handle 
this contest consisting of three members: Hon. John Boehner, 
Hon. Vern Ehlers, and Hon. William Jefferson. Congressman 
Boehner was the Chairman of the Task Force. On February 8, 
1995, Mr. Rose filed Contestee's Motion to Dismiss Contestant's 
Notice of Election Contest (hereinafter ``Rose's Motion'') and 
Memorandum of Congressman Charles G. Rose, III in Support of 
Motion to Dismiss Notice of Election Contest (hereinafter 
``Rose Memorandum'').\6\
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    \4\ U.S. Const. art. I, Sec. 5 (``Each House shall be the Judge of 
the Elections, Returns and Qualifications of its own Members * * *.'').
    \5\ 2 U.S.C. Sec. Sec. 381-96 (providing procedural framework in 
the House of Representatives for a candidate to contest the election of 
a Member of the House of Representatives).
    \6\ After Anderson's Notice vested the Committee with jurisdiction, 
numerous additional pleadings were filed. They were:
    On January 3, 1995, Mr. Anderson filed a Addendum of Election 
Contest concerning alleged improprieties related to financial 
contributions made by the Rose campaign;
    On January 26, 1995, Mr. Anderson filed a Second Addendum to 
Election Contest concerning Mr. Rose's residency;
    On March 2, 1995, Mr. Anderson filed Contestant's Response to 
Rose's Motion to Dismiss;
    On May 2, 1995, Mr. Anderson filed Anderson's Response to the Britt 
Report;
    On May 8, 1995, Mr. Rose filed Contestee's Reply to Contestant's 
Response to Rose Motion to Dismiss the Election Contest;
    On June 6, 1995, Mr. Anderson filed Contestant's Response to Rose 
Reply to Contestant's Response to Rose's Motion to Dismiss * * *;
    On June 19, July 6, July 7, July 24, July 28, August 3, and August 
4, 1995, Mr. Anderson submitted additional information to the 
Committee;
    On August 21, 1995, Mr. Anderson filed a Memorandum of Law in 
Support of Motion to Reconsider Election Contest; and
    On August 30, 1995, Mr. Anderson filed an Addendum to Memorandum of 
Law in Support of Motion to Reconsider Election Contest.
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Hearings held by the Task Force

    The Task Force held a hearing on June 9, 1995, in 
Lumberton, N.C. concerning Rose's Motion. As the moving party, 
Mr. Rose, through counsel, made the initial presentation in 
favor of dismissal. Mr. Rose's presentation featured several 
witnesses including District Attorney Britt. Mr. Anderson then 
presented his defense against Rose's Motion, including 
testimony by several witnesses including, poll workers, voters, 
a State Representative, and political scientists. Mr. Rose made 
a brief rebuttal presentation and Mr. Anderson concluded with 
additional argument and testimony. After each segment, the 
parties, their counsel, and their witnesses were questioned by 
the members of the Task Force. The Task Force chose to hold the 
hearing in Lumberton so that voters, election workers, and 
local officials would more easily be able to provide the Task 
Force with relevant information.
    On August 3, 1995, the Task Force held another meeting to 
consider Rose's Motion. After debate by the Task Force, Rep. 
Ehlers made a motion to grant the Motion to Dismiss and to send 
a copy of the committee report to the Department of Justice 
with a request to investigate irregularities and potential 
violations of federal law. Rep. Jefferson made a motion to 
separate the matters. The motion to grant the Motion to Dismiss 
passed by a vote of 3-0. The motion of referral to the 
Department of Justice was approved by a vote of 2-1, with Rep. 
Jefferson dissenting.
    Although no further action was required by the Task Force 
due to the granting of the Motion to Dismiss, the Committee 
issues this report to explain formally the reasons why Rose's 
Motion to Dismiss the Contest was granted.

                         ANDERSON'S ALLEGATIONS

    Anderson's Notice focused almost entirely on allegations 
concerning Robeson County, North Carolina.\7\ Outside of 
Robeson County, Mr. Anderson won the election by over 6400 
votes. In Robeson County, however, Mr. Rose was declared the 
winner by over 10,000 votes. Mr. Anderson made numerous 
specific allegations concerning election irregularities and 
fraud arising in the county before, during, and after the 
election. Mr. Anderson also relied heavily on the fact that, 
during 1994, an off-year election, Robeson County saw a vote 
increase of 12% while every other county in the district saw a 
vote falloff of at lease 23%. Indeed, the district-wide falloff 
was 35% from the turnout in the 1992 presidential election 
cycle.\8\
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    \7\ The 7th District encompasses all or part of eight counties of 
southeastern North Carolina: Bladen, Brunswick, Columbus, Cumberland, 
New Hanover, Onslow, Pender, and Robeson.
    \8\ The declines in turnout ranged from a low of 23% to a high of 
38% in the counties in the Seventh District other than Robeson.
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    Anderson's most significant allegations were:
          Inaccurate registration lists included many deceased 
        voters and duplicate registrations and impostors 
        apparently voted for registered voters;
          Election day registrations were allowed;
          People unable to identify themselves were allowed to 
        vote;
          Felons were allowed to vote;
          Poll workers were harassed;
          There were problems with ballot machines, ballot 
        marking pens, and other election day difficulties;
          Voting machines were preset not to read certain 
        ballots;
          The curbside voting process for disabled voters was 
        abused;
          Ballots were improperly remarked by election 
        officials;
          Voters suffered harassment, including intimidating 
        demands that voters cast their ballot in a particular 
        manner;
          Opening of ballot boxes before the polls closed and 
        failure to secure ballot boxes after the election;
          Voters in public housing were told their rents might 
        increase if they voted in a particular manner; and
          Bribes were offered to voters with funds contributed 
        by Rose and others to local ``voter participation'' 
        groups.\9\
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    \9\ The allegations concerning bribery and financial contributions 
involved organizations operating in counties other than Robeson County.
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All of these allegations were made in the context of explaining 
the unusual vote surge in the Seventh District portion of 
Robeson County.
    In support of these allegations, Mr. Anderson provided 
numerous affidavits, witness statements, statistical 
breakdowns, campaign materials, newspaper stories, 
correspondence, maps, audiotapes, his complaint filed with 
state authorities, documents related to the finances of local 
political organizations, registration and ballot information, 
minutes of meetings of state and local governmental bodies, and 
other materials.
    At the Lumberton hearing, Mr. Anderson presented witnesses 
who testified under oath concerning alleged irregularities. 
These witnesses included political scientists who discussed the 
unusual vote turnout in Robeson County, poll workers described 
harassment of voters and poll workers, voters who described 
alleged irregularities, and an elected official and one other 
witness who disputed charges that Mr. Anderson's contest was 
based on racial animus.
    Additionally, Mr. Anderson also argued that Mr. Rose was 
not a resident of the Seventh Congressional District at the 
time of the election, and thus was ineligible to be elected 
under North Carolina law. He specifically alleged that, under 
North Carolina law, Mr. Rose's residence had legally changed to 
Virginia in that his living quarters, correspondence, tax and 
voting records, and other actions reflected his decision and 
intention to end his North Carolina residency. Mr. Anderson 
also referred to divorce proceedings in which a Virginia court 
allegedly concluded that Mr. Rose was a resident of 
Virginia.\10\
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    \10\ Mr. Anderson has continued to seek a ruling concerning Mr. 
Rose's residency. He has sought to unseal court records concerning Mr. 
Rose's divorce which are maintained by a Virginia court. He has also 
attempted to obtain an administrative hearing in Cumberland County, 
North Carolina, concerning the status of Mr. Rose' residency. While the 
Task Force has authority to consider evidence of a candidate's 
residency in judging a contest, this Task Force opted, in its lawful 
discretion, not to interfere with a determination of Mr. Rose's 
residency by North Carolina authorities. Independent of his rights 
before the Task Force, Mr. Anderson has had and has utilized his rights 
before state regulatory and judicial authorities concerning this issue.
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                       rose's pre-answer defenses

    The Task Force considered Mr. Rose's pre-answer defense in 
the form of a ``Motion to Dismiss'' which demanded dismissal on 
the grounds that Anderson's Notice failed to state sufficient 
grounds to change the result of the election.\11\ This defense 
is one of the four statutory defenses allowed by the FCEA which 
a contestee may raise before filing an answer.\12\
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    \11\ Although the FCEA does not specifically provide that a pre-
answer motion may be styled in the form of a ``Motion to Dismiss'', 
contestees have frequently used this section of the Act as a demurrer 
device. See 2 U.S.c. Sec. 383(b) (1988).
    \12\ The four pre-answer defenses are:
    (1) Insufficiency of service of notice of contest.
    (2) Lack of standing of contestant.
    (3) Failure of notice of contest to state grounds sufficient to 
change result of election.
    (4) Failure of contestant to claim right to contestee's seat.
    Id.
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    Mr. Rose alleged that the evidence provided along with the 
Notice of Contest to prove the allegations was insufficient to 
survive a Motion to Dismiss. Mr. Rose claimed that the Notice 
of Contest had failed to provide ``in the first instance, 
sufficient supportive allegations and evidence to justify his 
claim to the seat.'' Rose Memorandum at 8 (quoting H. Rep. 626, 
92nd Cong., 1st Sess., Tunno v. Veysey, at 3 (1971)) (Rose's 
emphasis). Mr. Rose stated that the Notice of Contest provided 
``no competent evidence'' and charged that the allegations were 
based upon ``rumor and speculation[.]'' Rose Memorandum at 9, 
10.
    As an alternative ground for dismissal, Mr. Rose asserted 
that the Committee should respect North Carolina law and 
election procedure by dismissing the Notice of Contest because 
Mr. Anderson allegedly opted to forego state remedies.
    Mr. Rose also stated that he had been and intended to 
remain a North Carolina resident.

  standard for judging a motion to dismiss based on a lack of evidence

    The same standard for judging a Motion to Dismiss which was 
intended at the time of passage of the FCEA was applied to this 
contest: a contestant must make credible allegations of 
irregularities of fraud which, if subsequently proven true, 
would likely change the outcome of the election. The 
credibility element of the test allows for consideration of 
evidence confirming or refuting allegations of election errors 
or fraud, if such evidence is available. The standard also 
recognizes, however that the proof of election irregularities 
or fraud may not be obtainable by a contestant who has not had 
access to discovery. Nor does the test penalize contestants who 
cannot fully support their credible allegations because the 
proof of their claims is in the hands or minds of those who 
have committed the errors or violations at issue.\13\
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    \13\ The standard also recognizes the fact that contestants may not 
have had sufficient time to review election materials such as 
registration lists, poll sheets, absentee ballot forms, etc. which 
might form the basis of allegations of irregularities by the deadline 
for filing a contest. This problem in some cases might be due to the 
unavailability of the materials, or their sheer volume.
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    A key word in this test is ``credible.'' A Task Force 
should not allow a losing candidate to contest an election 
based on general, or disproven claims of fraud or 
irregularities. A contestant must provide specific, credible 
allegations which either invalidate sufficient ballots to 
affect the result of the election or would show the validity of 
the vote count to be seriously suspect because certain 
precincts were contaminated by fraud or other improper 
influences. In judging whether a particular allegation is 
credible, a Task Force should consider not only the 
contestant's view and any supporting evidence, but any 
countervailing arguments and evidence available from the 
contestee or other sources. Thus the standard balances the need 
of the House to allow for meanginful discovery while 
recognizing that mere notice pleading is insufficient in the 
face of credible contrary evidence.
    Republicans have consistently rejected the Democrat 
position that the contestant must be able to provide specific 
preliminary proof of his or her case at the time of the filing 
of the notice of contest in order to survive a Motion to 
Dismiss.\14\ The Democrat standard incorrectly elevated the 
Motion to Dismiss stage to an insurmountable barrier to 
election contestants.
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    \14\ See, e.g., H. Rep. 244, 95th Cong., 1st Sess., Young v. Mikva 
(1977). This standard was advocated by Democrats filing motions to 
dismiss in 1995. See Contestee (Rose's) Motion to Dismiss Contestant's 
Notice of Election Contest, at 10 (filed Feb. 8, 1995); Contestee 
Gejdenson's Motion to Dismiss the Election Contest, at 5 (filed Feb. 3, 
1995).
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    Thus, to be allowed discovery, a contestant must make, at a 
minimum, credible allegations which show either that:
          (1) more ballots were improperly cast than the margin 
        of victory; or
          (2) because of contaminating factors such as bribery, 
        harassment of voters, corruption of officials, etc., in 
        certain precinct(s), the credibility of the vote total 
        is irreparably damaged.
If a contestant is eventually successful in establishing 
convincing evidence of irregularities or fraud, the Committee 
could order remedies, including proportional deduction of 
improper ballots,\15\ exclusion of contaminated precincts,\16\ 
or ordering a new election.\17\ Whether any remedy would be 
appropriate depends on whether the allegations are proven and 
how critical they were to the apparent victory.
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    \15\ This remedy may be necessary where establishing a true vote 
count may be impossible because it cannot be determined for whom 
improper ballots had been cast without violating the voters' rights to 
a secret ballot. Even if a voter waived this right, it still might be 
difficult to prove for whom illegal ballots were cast because testimony 
by voters whose ballots are disputed might not have been credible while 
in other situations, the illegal ballot may not have been cast by any 
actual voter. The House's precedents allow for deletion of improper 
ballots by proportional deduction. This ``general rule . . . in the 
House for deduction of illegal votes where it is impossible to 
determine for which candidate they were counted'' requires reducing the 
total vote count in affected precincts in proportion to the percentage 
of votes received by each candidate in each precinct to eliminate the 
improper ballots from the vote count. See H. Rep. 513, 87th Cong, 1st 
Sess., Roush or Chambers, at 56 (1961); see also Deschler's Precedents 
Sec. 57 (H. Rep. 2482, 85th Cong., 1st Sess., Oliver v. Hale (1958)), 
Sec. 56.4 (H. Rep. 1599, 82nd Cong., 2nd Sess., Macy v. Greenwood 
(1952)); Ch. 9 App. Deschler's Precedents Sec. 5.4 at 828 (H. Rep. 
1450, 69th Cong., 1st Sess., Bailey v. Walters (1926)), Sec. 4.2 (H. 
Rep. 224, 68th Cong., 1st Sess., Chandler v. Bloom (1924)), Sec. 3.6 at 
770-71 (H. Rep. 1101, 67th Cong., 4th Sess., Paul v. Harrison (1922)), 
Sec. 2.7 at 744-45 (H. Rep. 1325, 66th Cong., 3d Sess., Farr v. McLane 
(1921)), Sec. 1.4 at 681 (H. Rep. 839, 65th Cong., 3rd Sess., 
Wickersham v. Sulzer (1919)), at Sec. 2.6 at 734 (H. Rep. 1319, 66th 
Cong., 1st Sess., Wickersham v. Sulzer and Grigsby (1919)); Chester H. 
Rowell, A Historical and Legal Digest of all the Contested Election 
Cases of the House of Representatives from the First to the Fifty-Sixth 
Congress (1901), at 368 (47th Cong., Bisbee v. Finley (1881)), at 318 
(44th Cong., Platt v. Goode (1875)), at 305 (44th Cong., Finley v. 
Walls (1875)).
    \16\ Mr. Anderson argued that all of the votes from certain 
precincts be disallowed, as has occurred when the Committee has 
concluded that the extent of the illegal ballots so distorted certain 
precincts that the proper remedy was to not count any ballots from the 
contaminated areas. See, e.g. Ch. 9 App. Deschler's Precedents Sec. 7.4 
at 877 (H. Rep. 1901 Part 2, 71st Cong., 2d Sess., Hill v. Palmisano 
(1930)), Sec. 5.4 at 820 (H. Rep. 1450, 69th Cong., 1st Sess, Bailey v. 
Walters (1926)), Sec. 4.2 at 784 (H. Rep. 224, 68th Cong., 1st Sess., 
Chandler v. Bloom (1924)); id. Sec. 3.6 at 770 (H. Rep. 1101, 67th 
Cong., 4th Sess., Paul v. Harrison (1922)), Sec. 2.7 at 744 (H. Rep. 
1325, 66th Cong., 3d Sess., Farr v. McLane (1921)), Sec. 2.4 at 717 (H. 
Rep. 961, 66th Cong., 2d Sess., Salts or Major (1920)), at Sec. 2.1 at 
696 (H. Rep. 375, 66th Cong., 1st Sess., Tague v. Fitzgerald (1919) 
(Citing Gill v. Dyer, 63rd Cong., Gill v. Catlin, 62nd Cong., Connell 
v. Howell, 58th Cong., Horton v. Butler, 57th Cong., Wagner v. Butler, 
57th Cong., and Easton v. Scott, 14th Cong.)).
    This remedy should be utilized only in extreme circumstances.
    Power to throw out the vote of an entire precinct should be 
exercised only under circumstances which demonstrate beyond a 
reasonable doubt that there has been a disregard of law or such fraud 
that it is impossible to determine what votes were lawful or unlawful, 
or to arrive at any result whatever, or whether a great body of voters 
have been prevented from exercising their rights violence or 
intimidation.
    H. Rep. 626, 92nd Cong., 1st Sess., Tunno v. Veysey (1971) at 4 
(internal citation deleted).
    \17\ An entirely new election is proper if the contamination of 
votes makes the winner of the election virtually impossible to 
determine. ``Declaring a vacancy in the seat is one of the options 
available to the House of Representatives and is generally exercised 
when the House decides that the contestant, while he has failed to 
justify his claim to the seat, has succeeded in so impeaching the 
returns that the House believes that the only alternative available to 
determine the will of the electorate is to hold a new election.'' H. 
Rep. 626, 92nd Cong., 1st Sess., Tunno v. Veysey at 11 (internal 
citations omitted); see also Deschler's Precedents Ch. 9 Sec. 49.1 at 
509 (H. Rep. 2255, 83rd Cong., 3d Sess., Roy v. Jenks (1938)), 
Sec. 47.14 at 495 (H. Rep. 334. 73rd Cong., 2nd Sess., Kemp, Sanders 
Investigation (1934)).
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Statutory construction, legislative history, and House precedent

    The language of the Motion to Dismiss in the FCEA and the 
statute's legislative history clearly indicate that the 
legislation was meant to install a procedural framework without 
changing substantive precedent of the House. The House had 
normally reviewed the pleadings and available evidence to 
determine whether there were sufficient grounds to allow 
further investigation. As a comparison with the federal civil 
procedure rules, therefore, the House utilized a standard 
blending of Rules 12(b)(6) and 56 of the Federal Rules of Civil 
Procedure.
    The FCEA statute allowing a Motion to Dismiss itself was 
designed and modeled after Rule 12(b)(6) of the Federal Rules 
of Civil Procedure which govern actions in federal court. This 
rule allows a defendant to have a case dismissed before 
discovery if the lawsuit could not state a legal claim even if 
every factual allegation and inference were true: the claimant 
is not required to provide convincing evidence in the form of 
documents and/or affidavits. The legislative history indicates 
the FCEA's supporters believed the language establishing the 
Motion to Dismiss was mean to give the defending party a 
procedural right similar to the demurrer, the common law 
equivalent of Rule 12(b)(6). Since the FCEA was only a 
procedural reform, it did not alter the ability of the 
Committee to consider available evidence in deciding whether a 
contest deserved further consideration. There is no indication 
from the statute or the legislative history, however, that the 
Motion to Dismiss device in the FCEA was meant to result in a 
trial on the merits.
    The Act's legislative history proves that the Act was not 
designed to alter the substantive grounds which a contestant 
must prove to overturn the certified results of a congressional 
election, a burden which has been and remains extremely high. 
Rather, as noted by then Chairman, Subcommittee on Elections, 
Democrat Rep. Abbitt:

          * * * [T]his bill does not set out any substantive 
        grounds for upsetting an election such as fraud or 
        other irregularities. It is strictly limited to 
        prescribing a procedural framework for the prosecution, 
        defense and disposition of contested-election cases 
        patterned upon the Federal rules of civil procedure 
        used for more than 20 years in our U.S. district 
        courts.

115 part 22 Cong. Rec. 30510 (1969). Rep. Kyl echoed these 
sentiments: ``The procedures [the Act] contains for pleadings, 
taking testimony and briefing a case are patterned roughly 
after the Federal Rules of Civil Procedure.'' Id. This 
conclusion was also reflected in the House report on the Act:

          The purpose of these changes is to bring the 
        procedure into closer conformity with the Federal Rules 
        of Civil Procedure upon which the contested election 
        procedures prescribed in H.R. 14195 are based . . . 
        Historical experience with the existing law has 
        demonstrated its inadequacies, among which are the 
        following: . . . There is no procedure for challenging 
        the legal sufficiency of the notice of contest by a 
        motion in the nature of a demurrer.

H. Rep. 569, Federal Contested Election Act, 91st Cong., 1st 
Sess., at 3 (1969).\18\
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    \18\ See also id. at 4 (``the bill is patterned upon the Federal 
Rules of Civil Procedure used for more than 20 years in the Federal 
Courts.''); 115 part 22 Cong. Rec. 30510 (1969) (remarks of Rep. Kyl) 
(remarking on need for procedure similar to demurrer). In affording a 
contestee the opportunity to present a ``failure to state a claim'' 
defense before serving an answer, the FCEA mirrors Rule 12(b)(6) which 
allows a defendant to assert ``failure to state a claim upon which 
relief can be granted[.]'' This similarity is not surprising because 
the language and structure of 2 U.S.C. Sec. 83 are copied directly from 
Rule 12 of the federal rules. For purposes of a Rule 12(b)(6) motion, 
all well-pleaded allegations are presumed true, all doubts and 
inferences are resolved in the pleader's favor, and the pleading is 
viewed in the light most favorable to the pleader. See, e.g., Albright 
v. Oliver, 114 S. Ct. 807, 810 (1994); Markowitz v. Northeast Land Co., 
906 F.2d 100, 103, (3d Cir. 1990).
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    The reasons why the Committee has and should demand more 
than mere allegations, as a court would require at summary 
judgment, are more complex. Normally a claim in federal or 
state court would be dismissed on summary judgment only after 
the party against whom dismissal was sought had an opportunity 
to gather evidence through the discovery process. However, 
under the FCEA, for a contestant to reach such discovery, he or 
she must first surmount the Motion to Dismiss hurdle. In order 
to keep frivolous cases from reaching discovery, the Committee 
standard incorporates the component of credibility into the 
review of a contestant's allegations similar to the standard a 
judge would utilize in reviewing the evidence at issue in a 
Rule 56 motion for summary judgment.\19\ Thus, because of the 
peculiarities of the contested election process and the 
important concern that only substantive challenges be permitted 
discovery, the proper standard is a blend of Rules 12(b)(6) and 
56.
---------------------------------------------------------------------------
    \19\ Also, the federal rules provide that a judge may deny or 
continue a motion for summary judgment if the party facing the motion 
certifies that certain evidence is not obtainable. Fed. R. Civ. P. 
56(f). Of course, normally by this stage in litigation a party would 
have an opportunity to take discovery. In the contested election 
context, where discovery comes after the Motion to Dismiss, recognition 
that evidence may be beyond the grasp of a contestant is even more 
appropriate.
---------------------------------------------------------------------------
    In comparison, when evidence was reviewed under the 
standard used by Democrats for the FCEA Motion to Dismiss, such 
consideration amounted to a trial on the merits. Using this 
summary judgment standard when the contestant had not been 
allowed discovery effectively made winning contests virtually 
impossible.

Consistent with the Republican position since the enactment of the FCEA

    In every case under the FCEA where a contestant made 
credible allegations of election irregularities or fraud which 
could have affected the result of the election, Republicans 
have urged use of this standard. For example, in the 1977 case 
of Paul v. Gammage, the Republicans noted:

          [T]he only burden cast upon the contestant is to 
        ``state'' with particularity the grounds of his 
        contest, not to ``prove'' them. * * * It would be the 
        grossest of discretion to deprive a contestant of the 
        opportunity to present evidence in support of his claim 
        for the only reason that he failed to plead his case 
        with particularity.
          * * * Our statute is new. Early precedents will set 
        the tone for disposition of later cases. It is 
        essential, therefore, that the misapplication of the 
        burden in deciding Motions to Dismiss be corrected now.

H. Rep. 243, 95th Cong., 1st Sess., at 7, 9 (dissenting views).
    Similarly, in Young v. Mikva, a dissenting Republican 
recommended that a ``motion to dismiss a contest will be 
granted unless the contestant has made allegations sufficient 
to justify the committee's conclusion that grounds have been 
presented which if proven would change the result of the 
election.'' H. Rep. 244, 95th Cong., 1st Sess., at 9 (1977) 
(minority views of Rep. Dave Stockman). The same standard was 
proposed by Republicans in the case of Wilson v. Leach in 1980: 
``if the contestant has stated grounds sufficient to change the 
results of the election, the Committee must deny the motion to 
dismiss and proceed with the case. The contestant does not have 
to prove those allegations beyond a reasonable doubt to quash 
the motion.'' H. Rep. 784, 96th Cong., 2d Sess., at 5 (minority 
views). Republicans also dissented against the dismissal of the 
cases of Hendon v. Clarke in 1983 and Hansen v. Stallings in 
1985 where persuasive allegations of irregular vote counting 
were pled properly. H. Rep. 453, 98th Cong., 1st Sess. at 9 
(dissenting views); H. Rep. 290, 99th Cong., 1st Sess., at 10 
(minority views).
    The Republicans consistently rejected the Democrat standard 
which shifted the burden of proof to the contestant at the 
Motion to Dismiss stage, even before the contestant had an 
opportunity for discovery. They remarked in Paul v. Gammage:

          The panel concluded that the mere filing of a motion 
        to dismiss casts upon the respondent the burden of 
        proving his case at the time the motion is heard.
          Such a unique shifting of the burden not only 
        reverses completely the established burden cast upon 
        the moving party in the analogous situation of a motion 
        for summary judgment, but is particularly inappropriate 
        under our contested election statute.

H. Rep. 243, 95th Cong., 1st Sess., at 8 (dissenting views).
    The reason why such burden-shifting is inappropriate was 
explained in Republican views filed in Young v. Mikva in 1977. 
Since irregularities and fraudulent activity may be difficult 
to uncover through private investigation (especially in cases 
where those committing the mistakes or violations are in 
control of the probative evidence and information), contestees 
need access to the FCEA's discovery mechanisms to uncover the 
evidence supporting credible allegations of irregularities or 
fraud:

          The contestant should be allowed the opportunity to 
        have access to the material he needs to present his 
        case either through action of the courts or this 
        committee pursuant to the Federal Contested Election 
        Act. To do otherwise renders the Procedures of the 
        Federal Contested Election Act a mockery and 
        establishes a veritable ``Catch 22'' precedent.

H. Rep. 244, 95th Cong., 1st Sess., at 9 (1977) (minority views 
of Rep. Dave Stockman).
    Republicans have been unwavering in their advocacy of this 
standard for judging a Motion to Dismiss. Thus, in the case of 
Saunders v. Kelly in 1977, where a Republican winner was 
challenged by a defeated Democratic candidate, the separate 
views of the minority Republicans rejected the Democrat 
position that Saunders' contest should be dismissed because she 
failed to provide documentary proof of her allegations. H. Rep. 
242, 95th Cong., 1st Sess., at 5 (separate views).
    Of course, on numerous occasions where the allegations made 
in a contest were either vague, improbable on their face, or 
insufficient even if true to place the election result in 
doubt, Republications have supported dismissals. In Pierce v. 
Pursell, the Republicans noted:

          In the instant case, Mr. Pierce is unable to allege 
        any specific irregularities justifying the conclusion 
        that the result of the election was in error * * *
          The present case is to be distinguished from Young v. 
        Mikva where specific ballot errors in an amount 
        sufficient to change the result of the election were 
        affirmatively alleged by the contestant.

H. Rep. 245, 95th Cong., 1st Sess., at 4 (supplemental views).
    In conclusion, the standard for judging a Motion to Dismiss 
under the FCEA which applied in this case is consistent with 
the language of the statute, the FCEA's legislative history, 
analogy to court practice, the House's precedents, and common 
sense. Just as importantly, it will bolster the integrity of 
our electoral system by allowing illegal and improper acts to 
be publicized and deterred, and by ensuring that elections are 
decided by the voters, not by election officials.

           anderson's allegations did not meet this standard

Introduction

    Although they spotlighted serious and potentially criminal 
violations of election laws, Mr. Anderson's allegations did not 
meet the required standard to survive the Motion to Dismiss. 
While on their face they bring into question the validity of 
more specific ballots than the margin of victory, once 
available evidence was considered, the number of votes 
potentially affected by credible allegations is far below than 
requisite 3,821 ballots. Furthermore, while Mr. Anderson does 
provide credible allegations of corrupting factors which 
support a contamination theory of a changed result, the 
sporadic nature of the problems indicates that discovery would 
not uncover sufficient evidence to justify discounting of any 
particular precinct.

The SBI report \20\

    As discussed below, the Committee is generally willing to 
defer to state electoral rules and investigations. It is clear, 
however, that while the SBI thoroughly investigated many of the 
allegations raised by Anderson, it failed to take several 
important investigatory steps. These gaps cast serious doubt on 
the conclusiveness of the report. For instance, although 
allegations of bribery were confirmed, the SBI accepted the 
District Attorney's recommendation not to take polygraphs of 
any of the alleged perpetrators. Nor did the SBI attempt to 
question the officers of the ``community groups'' Mr. Anderson 
alleged were involved in the vote buying or examine their 
financial records. Also, Mr. Anderson alleged that voting 
machines were pre-set to ignore votes cast in his favor. The 
SBI chose not to question the sole source of this 
allegation.\21\ Additionally, the SBI largely ignored the 
claims by numerous voters and poll workers that election 
officials were improperly advising and assisting voters to vote 
``straight Democrat'' tickets. The SBI report, therefore, is 
not a definitive document on Anderson's allegations.\22\
---------------------------------------------------------------------------
    \20\ Asserting a North Carolina state statute, the SBI refused to 
turn over physical control of their investigatory materials or allowed 
them to be copied. Consultants and staff for the Task Force and its 
members, however, did review the material over several days. The 
officer-in-charge and counsel for the SBI also responded to questions 
posed by consultants and staff.
    \21\  Consultants to the Task Force spoke to the source, the former 
Robeson County sheriff, who refused to confirm this allegation.
    \22\ The SBI report is also incomplete in that several individuals 
who provided affidavits or statements to Mr. Anderson refused to speak 
to SBI agents.
---------------------------------------------------------------------------

Bribery

    Mr. Anderson alleged widespread bribery of voters with 
funds donated by Mr. Rose and others to three community groups. 
In support of his charges, Mr. Anderson provided the statements 
of several voters who were either allegedly offered or 
witnessed bribes.\23\ The SBI confirmed isolated allegations of 
bribery. The investigators, however, did not uncover evidence 
indicating widespread bribery, and no poll worker or election 
official provided any testimony involving specific instances of 
bribery.\24\ As mentioned above, the status of the community 
organizations and the propriety of the contributions for ``get-
out-the-vote'' activities are unclear.\25\
---------------------------------------------------------------------------
    \23\ It is not clear whether the bribes were said to be offered for 
a vote in the Anderson-Rose contest, the sheriff's race, or both.
    \24\ Of the persons alleged to have been handing out cash at the 
polls, several claimed to have been paying people who were hauling 
voters to vote.
    \25\ Mr. Rose contributed $5,600 to the Minority Vote Drive 
Committee (``MVDC''), $3,000 to the Columbus County Civic League 
(``CCCL''), and $5,000 to the South Lumberton Improvement Association. 
Documents provided by Mr. Anderson indicate that the MVDC is not 
registered with any regulatory authority and operates from a P.O. box. 
Additionally, documents provided by Mr. Anderson show the CCCL has been 
cited repeatedly by state election authorities for violations of 
financial disclosure requirements.
---------------------------------------------------------------------------
    Nonetheless, the bribery charges are insufficiently 
credible to bolster the contest to survive the Motion to 
Dismiss. As noted above, in order to contribute to overcoming 
the burden a contestant faces on a Motion to Dismiss, any 
particular allegation must be specific and credible. In this 
case, Mr. Anderson has provided specific, credible allegations 
involving bribery which concern only a very small number of 
voters. His allegations of a wider scope, involving financial 
contributions, do not contain any specific allegations showing 
how the financial contributions resulted in bribes. It is not 
impossible that Mr. Anderson's scenario is true, but his theory 
is not nearly detailed enough to meet the requisite credibility 
standard.\26\
---------------------------------------------------------------------------
    \26\ The seriousness of the allegations and the specific 
accusations of several of Mr. Anderson's witnesses, however, do warrant 
referral of this issue to the Department of Justice. That the Task 
Force believes that the bribery allegations are insufficient to meet 
the standards required by the FCEA does not mean that illegal conduct 
did not occur. Unlike the Task Force, the Department of Justice need 
not consider the margin of victory in examining charges of bribery and 
other alleged violations of federal law. ``See, e.g.,'' 18 U.S.C. 
Sec. Sec. 241, 242, 245(b)(1)(A), 594, 597, 1341, 1952; 42 U.S.C. 
Sec. Sec. 1973gg-10(1), 1973i(c).
---------------------------------------------------------------------------

Harassment of voters

    Affidavits and witness statements provided by Mr. Anderson, 
some of which were confirmed by the SBI, detail a number of 
alleged incidents suggesting that voters were harassed at 
certain polling stations. This harassment included election 
officials urging voters to vote ``straight Democratic'' tickets 
and showing voters how to vote these tickets without being 
requested to do so, Democratic poll workers improperly having 
access to voting areas to campaign for their candidates, and 
intoxicated and extremely aggressive individuals interrupting 
the polling process.\27\
---------------------------------------------------------------------------
    \27\ Mr. Anderson and supporting witnesses also alleged Republican 
poll workers and voters were harassed outside the polling areas by 
Democratic poll workers and by local Democratic elected officials such 
as sheriffs and town managers. While District Attorney Britt dismissed 
these charges as ``best described as aggressive campaigning[,]'' the 
number and violence of these threats demonstrate another feature of a 
flawed election process in Robeson County.
---------------------------------------------------------------------------
    It is obviously impossible to calculate how many votes, if 
any, were affected by this improperly partisan atmosphere at 
the polling stations. For these allegations to warrant 
discounting the results of any precinct, the Task Force would 
have to conclude that during discovery, Mr. Anderson might 
uncover evidence to meet the following standard:

          Power to throw out the vote of an entire precinct 
        should be exercised only under circumstances which 
        demonstrate beyond a reasonable doubt that there has 
        been a disregard of law or such fraud that it is 
        impossible to determine what votes were lawful or 
        unlawful, or to arrive at any result whatever, or 
        whether a great body of voters have been prevented from 
        exercising their rights by violence or intimidation.

H. Rep. 626, 92nd Cong., 1st Sess., Tunno v. Veysey (1971) at 4 
(citations omitted). The Task Force was entitled (and indeed 
required) to consider the evidence available concerning this 
issue. The witness statements gathered by the SBI indicate that 
the harassment of voters was more isolated or merely suggestive 
than widespread or intimidating. The general tone of the 
comments concerning harassment indicated that improper 
campaigning outside the polling area was the main problem, 
rather than intimidation of voters inside the polls.

Improper voters

    Mr. Anderson made a number of allegations suggesting that 
votes were cast by unqualified voters or by impostors. These 
accusations included: (1) dead voters ``voting''; (2) 
unregistered persons voting; (3) multiple votes being cast in 
the name of a single voter; (4) persons unable to identify 
themselves being allowed to vote; (5) felons improperly being 
allowed to vote; and (6) the curbside voting process for 
disabled voters being used to cast fraudulent votes. While Mr. 
Anderson made numerous specific allegations in support of these 
charges, the SBI report and other available evidence makes 
clear the conclusion that these events did not occur on a scale 
large enough to affect the election and thus warrant the denial 
of the Motion to Dismiss.
    For instance, the SBI confirmed, either through handwriting 
analysis or personal affirmation, virtually every curbside 
ballot and found that Mr. Anderson's allegations that the 
curbside process was utilized to stuff ballots were 
unsupported.\28\ Furthermore, the SBI concluded that while 
inmates were allowed to register, no ineligible felon cast a 
ballot. Additionally, the SBI found no evidence that ballots 
were cast in the name of deceased voters. The allegations that 
numerous persons were allowed to register on election day and 
vote at certain precincts were based on vague rumors and the 
addition of several names to precinct registration lists. The 
SBI found no evidence suggesting that voters other than those 
confirmed as eligible by the local board of elections were 
added to the rolls at these precincts. Likewise, while there 
was evidence that some voters could not provide personal 
information matching the registration lists, the confusion most 
often appeared to be due to voters having similar names or 
registration lists being inaccurate.\29\
---------------------------------------------------------------------------
    \28\ The Task Force recognizes that the number of voters utilizing 
the curbside voting process in Robeson County was unusually high in 
comparison with the rest of the district.
    \29\ The fact that many of these issues did not affect the result 
of the election does not alter the Task Force's conclusion that the 
election process in Robeson County is highly flawed. Just as one 
example, the registration lists do contain numerous double 
registrations and deceased voters. The Board of Elections' response to 
Mr. Anderson's allegations suggested more concern for partisan politics 
than for the integrity of the election process. For instance, when 
questioned about Mr. Anderson's allegations, one member of the Robeson 
County Board of Elections rejected the claims, stating that the board 
was following an unspecified ``new agenda'' in light of the 1994 
election returns. That the board would turn a blind eye to voter fraud 
is partisan politics at its worst. The member went on to claim that Mr. 
Anderson's allegations were an attempt to create an apartheid system 
such as in South Africa, a charge of racism which African-American 
witnesses for Mr. Anderson forcefully rebuked at the June 9, 1995 
hearing. The election official also later criticized proposals to check 
voters' identification, claiming that poll workers could determine by 
sight who was eligible and ineligible to vote.
---------------------------------------------------------------------------
    The SBI did confirm several instances where voters appeared 
at the polls only to find that ballots had already been cast in 
their name. While this unexplained phenomenon again highlights 
the inadequacies of the election process in Robeson County, the 
small numbers involved do not suggest discovery might uncover 
massive numbers of additional impostor voters.

Other alleged irregularities

    Mr. Anderson made a number of additional accusations 
concerning pre-election, election day, and post-election 
matters, none of which cast doubt on the result of the 
election, even taken in their entirety. The SBI did confirm 
that a handful of voters were accidentally given ballots with 
the 8th Congressional District race included, instead of the 
Anderson-Rose contest. A number of additional events raised by 
Anderson concerning particular ballots or voters turned out to 
be true but had little or no effect on the validity of any 
ballots.\30\
---------------------------------------------------------------------------
    \30\ These matters included: (1) Deceased voters remaining on 
registration lists when no votes were cast in their names; (2) Voters 
being registered multiple times when no multiple votes were cast; (3) 
Ballots using the term ``Democratic'' instead of ``Democrat''; (4) 
Duplicate absentee ballots being circulated with safeguards against 
multiple voting when ballots were distributed without the name of a 
candidate for another office; and (5) Ballots being reinked by election 
officials in the presence of many observers, including a SBI agent. Mr. 
Rose's argument, however, that Mr. Anderson was required to file 
actions in state court concerning irregularities arising before the 
election is applicable only to those matters known by Mr. Anderson 
sufficiently in advance of the election to allow a protest. See H.Rep. 
453, 98th Cong., 1st Sess., Hendon v. Clarke, at 5-6 (1983); L. 
Deschler, Deschler's Precedents of the House of Representatives, Ch. 9, 
Sec. Sec. 7.1, 56.1 (discussing H. Rep. 906, 82nd Cong., 1st sess., 
Huber v. Ayres (1951)).
    Accusations revolving around election day matters which should be 
considered as insignificant include: (1) Republicans not being allowed 
carbon sheets; (2) Polling places being improperly set up; (3) The non-
posting of one absentee voter list; (4) Problems with voting pens; and 
(5) One election official leaving a voting site.
---------------------------------------------------------------------------
    Other allegations can be discounted in light of evidence 
and testimony collected by the SBI.\31\ Still additional 
allegations were either so generalized or distantly related to 
the casting of ballots that meaningful evaluation was not 
possible.\32\
---------------------------------------------------------------------------
    \31\ These allegations include: (1) The failure of election 
officials to accept registrations collected by local Republican 
workers; (2) Handling of tabulating machines during polling; (3) 
Absentee ballots being counted late; (4) Delays in votes being tallied; 
(5) The failure of election officials to check voting machine tapes; 
(6) One error in the canvass in another race; and (7) Failure to 
safeguard voting materials.
    \32\ These allegations included: (1) Voters being allowed to 
register after the registration cutoff; (2) Voters registered at P.O. 
boxes; (3) Illegal immigrants voting; (4) A gunshot being fired at an 
Anderson supporter's home; (5) A witness hearing a person tell a public 
housing resident rents would increase if Mr. Anderson won the election; 
and (6) An election official allegedly reporting one different precinct 
result to Mr. Anderson than the official totals indicated.
---------------------------------------------------------------------------

The unexplained surge in turnout in Robeson County

    The most difficult aspect of Mr. Anderson's contest lies in 
the unexplained voter surge in the portion of Robeson County 
which lies in the Seventh Congressional District. As described 
above, while turnout in the off-year election of 1994 
throughout the district, the state, and the nation was down 
significantly from 1992, the turnout in the crucial part of 
Robeson County was up 12.6%. Mr. Rose and a political scientist 
who testified on his behalf have argued that the turnout was 
the result of a racially-charged and hotly-contested sheriff's 
election in Robeson County. The portion of Robeson County in 
the Eighth Congressional District saw a vote falloff of 18.5%, 
however. Had turnout in Robeson County been uniform, Mr. Rose's 
overall margin would have been less than 1000 votes. Had 
turnout in Robeson County matched the district as a whole, Mr. 
Anderson would have won the election.\33\
---------------------------------------------------------------------------
    \33\ These comments assume that the candidates' vote percentages 
would have remained constant. The possibility exists, of course, that 
the unusual additional ballots cast were even more heavily weighted for 
Mr. Rose than the general returns in the Seventh District portion of 
Robeson County.
---------------------------------------------------------------------------
    Mr. Rose's explanations for the turnout are not persuasive. 
He and his witnesses argued that the increases in registration 
and in turnout by Native American voters were due to interest 
in the sheriff's race in Robeson County.\34\ Mr. Anderson and 
his academic witnesses, however, have discredited this theory 
by controlling for the levels of Native American 
population.\35\ The argument made by Mr. Rose's political 
scientist that the disparity can be attributed to the closely-
contested nature of the Rose-Anderson election is also without 
merit. The election in the Eight District also featured a tight 
struggle between a long-time Democrat incumbent and a 
Republican challenger, and the margin of victory (52%-48%) and 
the vote turnout (119,985 votes) were remarkably similar to the 
Seventh District race.
---------------------------------------------------------------------------
    \34\ As noted by Mr. Anderson, the figures for registration and 
turnout rates are of dubious accuracy because the registration lists 
are tainted by multiple registrations and decreased persons remaining 
on the rolls. Robeson County election officials have apparently failed 
to correct the large number of erroneous registrations.
    \35\ They have shown that precincts in the Seventh District with 
nearly identical percentages of Native Americans as matching Eighth 
District precincts had much higher vote turnouts. Of these eight pairs, 
the Seventh District precinct featured higher turnout in all but one 
instance, and six of the eight precincts had turnouts at least 10% 
higher. As noted, the overall difference in turnout between the seventh 
and Eighth District portions of the county was 31%.
---------------------------------------------------------------------------
    Nonetheless, a statistical analogy cannot be the basis of a 
contest. House precedent is clear that election returns are 
presumed to be correct and that errors rebutting this 
presumption must be proven, not assumed. H. Rep. 763, 94th 
Cong., 1st Sess., Ziebarth v. Smith, at 15 (1975); H. Rep. 
1278, 73d Cong., 1st Sess., Chandler v. Burnham, at 3 (1934). 
These general rules are equally applicable to statistical 
accusations such as unusual turnout levels. H. Rep. 763, 94th 
Cong., 1st Sess., Ziebarth, at 16. Clearly the presence of 
unusual vote levels should heighten the scrutiny paid to events 
or trends which might explain the vote. Nonetheless, as the 
credibility of this statistical accusation depends on the 
credibility of the allegations made to explain the statistics, 
the unusual turnout cannot be the bootstraps by which Mr. 
Anderson's contest survives a Motion to Dismiss.

STANDARD FOR JUDGING A MOTION TO DISMISS BASED UPON DEFERENCE TO STATE 
                              PROCEEDINGS

    Mr. Rose also sought dismissal of Anderson's Notice based 
on Mr. Anderson's alleged decision to forego state law 
remedies. Congress has repeatedly held that it will follow 
either state laws or decisions of state courts unless the laws 
or decisions are unsound. H. Rep. 202, 63d Cong., 2d Sess., 
Carney v. Smith, at 2586 (1914); see also 6 Clarence Cannon, 
``Cannon's Precedents of the House of Representatives of the 
United States'' Ch. 162 Sec. Sec. 91, 92 (1935) (quoted in H. 
Rep. 760, 94th Cong., 1st Sess., Kyros v. Emery, at 6 (1975)). 
This determination was upheld by the Supreme Court in a case 
involving a Senate election, Roudebush v. Hartke, 405 U.S. 15 
(1972), and has been made by numerous state courts, including 
the Supreme Court of North Carolina. See H. Rep. 760, 94th 
Cong., 1st Sess., Kyros v. Emery, at 8 (citing cases) (1975); 
Britt v. Board of Comm'rs, 90 S.E. 1005, 1007 (N.C. 1916). This 
deference to sound decisions applies to statutes, rulings 
concerning particular issues of ballot interpretation, and to 
the final determination of the winner of an election if 
reversed by rulings on disputed ballots. See, e.g., 2 Lewis 
Deschler, ``Deschler's Precedent'', Ch. 9 Sec. Sec. 57.3, 591. 
(1978) (discussing Oliver v. Hale, H. Rep. 2482, 85th Cong., 
1st Sess. (1958), and Roush or Chambers, H. Rep. 513, 87th 
Cong., 1st Sess. (1961)).
    Although the House's constitutional responsibility to 
fairly judge the elections and returns of members is not 
limited by state law or state judicial decision, Mr. Rose 
correctly pointed out that the House has traditionally treated 
with respect state election laws and related legal process.\36\ 
In general, deference to state law and procedures is a fair, 
just, and appropriate procedure for the House.
---------------------------------------------------------------------------
    \36\ It is clear that this House tradition was grossly breached in 
the handling of the McCloskey-McIntyre contest. See H. Rep. 58, 99th 
Cong., 1st Sess., McCloskey v. McIntyre, at 45-58 (1985) (dissenting 
views).
---------------------------------------------------------------------------
    It appears to the Committee that Mr. Anderson did indeed 
seek state relief by his filing of his state complaint a month 
before the Notice of Contest was submitted. As discussed above, 
the state Board of Elections certified Mr. Rose's election only 
under very unusual circumstances. Moreover, the board left open 
the question of reconsidering the matter once the SBI had 
completed its investigation. As that investigation was not 
completed until long after the deadline for filing a contest 
under the FCEA, Mr. Anderson properly chose to proceed along 
two tracks.
    Once the SBI report was completed and arrangements made for 
the Task Force to review its contents, staff and consultants to 
the Task Force reviewed the material. In large part, the 
Committee's decision in this matter has indeed been guided by 
the actions and conclusions of the SBI on particular matters 
raised by Mr. Anderson. Although neither the SBI or the SBE nor 
any state court has issued a formal review of the results of 
the election at this time, it is clear that North Carolina 
authorities are not likely to alter the result of the election. 
As the Committee has relied generally on the state 
investigation, has not conducted any independent investigation 
(except for the field hearing), and has not disturbed the 
conclusions that Mr. Rose won the election, the Committee 
indeed has upheld state proceedings.\37\
---------------------------------------------------------------------------
    \37\ At the same time, however, as noted above, the House has the 
authority to arrive at its own conclusions on any particular issue 
affecting the validity of a ballot or return. The SBI report in some 
respects was clearly flawed or unreliable and the Committee disagrees 
with these flawed conclusions, even though these issues are not 
significant enough to deny the Motion to Dismiss.
---------------------------------------------------------------------------

                               CONCLUSION

    For the reasons discussed above, the Committee therefore 
concludes that this contest should be dismissed.
                           SUPPLEMENTAL VIEWS

    This election contest was initiated by Robert C. Anderson, 
pursuant to the Federal Contested Election Act of 1969 
(``FCEA'' or ``the Act''), 2 U.S.C. Sec. 381 et seq., to 
challenge the election of Congressman Charles G. Rose, III to 
represent the 7th U.S. Congressional District for the State of 
North Carolina. It is the last of such contests to be resolved 
by the Committee arising out of the November 1994 Congressional 
elections, all of which were brought by disappointed Republican 
candidates. Although this contest has now been dismissed by the 
Committee based on the pre-answer motion filed by Congressman 
Rose last February under Sec. 383(b) of the Act, the dismissal 
of the Notice of Contest in this case, as in a number of other 
cases this year did not come until many months had passed and 
tens of thousands of dollars had been spent on field hearings 
and other proceedings conducted by the Majority over our 
objection. To a significant extent, we attribute the 
unnecessary delay, the unwarranted expense to the taxpayers, 
and the considerable cost to the efficient working of the House 
that accompanied this year's election contests to the fact that 
this Committee is under the control of a new Republican 
Majority, and that new Majority has struggled (at times for 
plainly partisan purposes) in interpreting and applying the 
provisions of the FCEA. Our purpose in submitting these 
supplemental views is to explain where the Republican Majority 
went wrong in interpreting the FCEA and permitting unnecessary 
and wasteful proceedings, with the hope that the Committee can 
avoid a repetition of the same mistakes in the future.

               1. overview of the committee's proceedings

    The Committee's dismissal of the Anderson contest is both 
proper and inescapable. Mr. Anderson lost the November 1994 
election for the North Carolina 7th District to Congressman 
Rose by over 3,800 votes. He filed a Notice of Contest with the 
Clerk of the House which included a long laundry list of 
allegations, principally directed at elections officials in 
Robeson County, one of the eight counties included in whole or 
part in the North Carolina 7th. Those allegations ranged from 
claims that tables in certain polling places were not arranged 
in precisely the manner specified by State law to vague and 
unsubstantiated charges of bribery of thousands of voters. None 
of Anderson's allegations were supported by `'substantial 
preliminary proof'' of the type of Committee for the past 25 
years has required a contestant to submit at the time the 
Notice is filed.
    Moreover, even before submitting his laundry list of 
allegations to the House, Anderson submitted that same list to 
North Carolina State elections officials, who in turn asked the 
State Bureau of Investigation (``SBI'') to determine whether 
there was any merit to Anderson's allegation. In early April 
1995, shortly after this Committee established a three-member 
Task Force to consider Anderson's Notice of Contest, the 
District Attorney in Lumberton, North Carolina, Luther Britt, 
issued a 20-page report on the SBI's extensive investigation of 
over 80 potential witnesses and hundreds of documents relating 
to Anderson's allegations. District Attorney Britt's report 
concluded: ``Based upon the thorough investigation conducted by 
the State Bureau of Investigation, there is no evidence to 
support the allegations of elections fraud and wrongdoing by 
the Robeson County Board of Elections' officials.
    Viewed from a perspective of simple common sense, the above 
makes clear that this Committee could have and should have 
dismissed Anderson's Notice of Contest shortly after it was 
filed, or at the very latest shortly after Congressman Rose 
submitted his pre-answer Motion under Sec. 383(b) of the FCEA 
and the Committee received District Attorney Britt's report on 
the results of the State investigation. It further is all too 
clear to us why that common sense result did not occur in this 
case; just as we have no doubt about why the new Majority 
allowed other disappointed Republican candidates to maintain 
election contests for months and assisted them by holding field 
hearings designed to help build steam for their next election 
campaigns. Our principal reason for submitting these 
supplemental views, however, is not to comment on the motives 
for the Majority's actions but instead to decry the method used 
by the Majority to accomplish its purpose--a method that 
threatens to disrupt the electoral process and this House in 
the future and to undermine the consistent precedents that have 
been followed since enactment of the FCEA 25 years ago.
    Specifically, we are most concerned by the Majority's 
refusal to endorse and abide by the legal standard that has 
been accepted and used to decide pre-answer motions to dismiss 
in every FCEA election contest that has been filed and resolved 
prior to this year. That legal standard fixes the threshold 
burden that a disappointed candidate must meet before he or she 
is permitted to commence discovery and invoke other procedures 
under the FCEA. For 25 years, Democratic and Republican members 
of the Committee together have read the FCEA as fixing that 
threshold burden at an appropriately high level-analogous to 
the burden that a plaintiff in a federal civil action must 
carry in responding to a motion for summary judgment under 
Federal Rule of Civil Procedure 56. This year, the new 
Republican Majority has vacillated in its articulation of the 
legal standard that governs pre-answer motions under the FCEA, 
at time acknowledging that the standard is analogous to a Rule 
56 standard in a civil action, and at other times suggesting 
that it is analogous to the very different standard used to 
review motions filed in civil actions under Federal Rule of 
Civil Procedure 12(b)(6). That vacillation has encouraged 
disappointed candidates like Anderson and has been used by the 
Majority to justify field hearings and other delays before 
reaching the inevitable outcome of dismissal.
    In the end, it is unclear where the legal standard adopted 
by the Majority falls on the spectrum between Rule 12(b)(6) and 
Rule 56. The Majority most recently has stated that, to survive 
a pre-answer motion, a contestant must make ``credible 
allegations'' of irregularities or fraud which, if subsequently 
proven true, would likely change the outcome of the election. 
As we discuss below, although it is far from clear what the 
Majority means by the term ``credible allegations'' in this 
context, it does not appear to be the same standard that has 
been accepted on a bipartisan basis and that has served the 
Committee well in FCEA cases since 1969. Instead, as we further 
discuss below, the Majority's current formulation of its legal 
standard for resolving pre-answer motions appears to be the 
product of confusion and misunderstanding among the Majority 
and on their misreading of a handful of highly partisan 
dissenting statements by certain Republican members in earlier 
FCEA proceedings. Finally, we discuss why the facts and 
proceedings in this case make clear that the traditional legal 
standard established and used in every FCEA case prior to this 
year must be restored and followed in order to preserve an 
appropriate respect for the electoral process and to avoid 
unnecessary delay and expense in future proceedings under the 
Act.

  2. the established legal standard for resolving pre-answer motions 
                             under the fcea

    Section 383(b) of the FCEA authorizes a contestee to raise 
certain specified defenses at the outset of an election 
contest, before the contestee is required to submit an Answer 
to the contestant's Notice of Contest. This pre-answer motion, 
often referred to as a motion to dismiss, is intended to permit 
the contestee and the Committee to take a hard look at the 
contestant's Notice of Contest to determine whether there is 
good reason for the Committee and the parties to spend 
additional time and resources questioning an election result 
that in most cases already has been certified by the State in 
which the election was held. Among the defenses that a 
contestee may raise in a pre-answer motion, for example, is the 
``[f]ailure of [the] notice of contest to state grounds 
sufficient to change the result of this election.'' 2 U.S.C. 
Sec. 383(b)(3).
    The meaning and purpose of this section of the FCEA were 
discussed in the very first contest brought under the Act, in 
the case of Tunno v. Veysey, H. Rep. No. 92-626 (1971), in a 
unanimous, bipartisan decision that was issued by many of the 
same members of the House who had just recently sponsored the 
Act. In Tunno v. Veysey, the Committee explained the proper 
application of Section 383(b) of the Act as follows:

          This provision was included in the new act because it 
        has been the experience of Congress that exhaustive 
        hearings and investigations have, in the past, been 
        conducted only to find that if the contestant had been 
        required at the outset to make proper allegations with 
        sufficient supportive evidence that could most readily 
        have been garnered at the time of the election such 
        further investigation would have been unnecessary and 
        unwarranted.
          Under the new law then the present contestant, and 
        any future contestant, when challenged by a motion to 
        dismiss, must have presented, in the first instance, 
        sufficient allegations and evidence to justify his 
        claim to the seat in order to overcome a motion to 
        dismiss.

Tuno v. Veysey, H. Rep. No. 92-626 at 3 (emphasis added).
    The above discussion from Tunno v. Veysey has been quoted 
and cited with approval again and again in unanimous bipartisan 
Committee decisions ruling on pre-answer motions to dismiss. 
Based on Tunno v. Veysey as well as the language of the Act 
itself, House precedents over the past 25 years have 
established a clear legal standard governing motions to dismiss 
that embodies two basic rules: (1) once a motion to dismiss is 
filed, the contestant bears the burden of demonstrating to the 
Committee that there is good reason for permitting the election 
contest to go forward; and (2) in order to meet that burden, a 
contestant must supply evidentiary support for the allegations 
in the Notice of Contest--``[a]llegations without 
substantiating evidence are insufficient to meet the 
requirement of the burden of proof as against a motion to 
dismiss.'' Wilson v. Hinshaw, H. Rep. No. 94-764 (1975); 
accord, e.g., Ziebarth v. Smith, H. Rep. No. 94-763 (1975); 
Pierce v. Pursell, H. Rep. No. 95-245 (1977); Archer v. 
Packard, H. Rep. No. 98-452 (1983); McCuen v. Dickey, H. Rep. 
No. 103-09 (1993).
    It is important to note that, while there was a Democratic 
Majority throughout the 25-year period during which the above 
legal standard was established and followed, the standard was 
applied in a completely evenhanded fashion. Indeed, each of the 
precedents cited in the preceding paragraph--including Tunno v. 
Veysey--involved a Democratic contestant who was challenging a 
seated Republican member. In each case, the Democratic Majority 
applied the legal standard set forth above and dismissed the 
Notice of Contest. In each case, the Republican members of the 
Committee unanimously joined in the decision. Over the 25 years 
following enactment of the FCEA, Republican members dissented 
from only a handful of decisions on motions to dismiss election 
contests brought under the Act, and all of those contests 
involved Republican contestants who sought to challenge 
Democratic members. As we will discuss in the next section, 
even those scattered and clearly partisan Republican dissents 
do not provide any rational basis for departing from precedent 
and changing the established legal standard.
    It also is important to note that the legal standard to 
which the Committee adhered for the 25 years prior to this year 
does not impose an unfair or insurmountable burden on the 
contestant. The Committee consistently has emphasized that ``a 
contestant is not required to prove his entire case in order to 
overcome a motion to dismiss.'' Archer v. Packard, H. Rep. No. 
98-452 at 3 (1983); accord, e.g., Perkins v. Byron, H. Rep. No 
96-78 at 3 (1979); Rayner v. Stewart, H. Rep. No. 96-316 at 3-4 
(1979); Thorsness v. Daschle, H. Rep. No. 96-785 at 3 (1980). 
Instead, ``a contestant must submit sufficient documentary or 
other evidence,'' including affidavits that indicate what 
testimony could be expected from witnesses if called or what 
documentary evidence could be produced pursuant to subpoena. 
Id. Unless the allegations in the Notice of Contest are based 
solely on speculation or surmise, a contestant should be able 
to produce at least some evidence--i.e., some ``substantial 
preliminary proof,'' even if not the type that might be 
admissible at a hearing--to support those allegations.
    This legal standard is designed to operate in a manner 
closely analogous to the standard used by federal courts in 
ruling on summary judgment motions filed by defendants under 
Rule 56 to test whether the plaintiff has an adequate factual 
basis for pursuing a federal complaint. A motion may be filed 
under Rule 56 ``at any time'' after a civil complaint has been 
filed. Fed. R. Civ. P. 56(b). Once a defendant files such a 
motion and calls into question the plaintiff's ability to 
support the allegations in the complaint, the burden is placed 
on the plaintiff (i.e. the party that would ultimately bear the 
burden of proof if the case were to proceed to trial) to come 
forward with evidence to support its allegations. The plaintiff 
is not required to ``produce evidence in a form that would be 
admissible at trial,'' but it is required ``to go beyond the 
pleadings'' by producing affidavits or other documentary 
evidence which ``designates `specific facts showing that there 
is a genuine issue for trial.' '' Celotex Corp. v. Catrett, 477 
U.S. 317, 324 (1986)(quoting Fed. R. Civ. P. 56(c)). In short, 
a plaintiff cannot ``resist a properly made motion'' under Rule 
56 ``by reference only to its pleadings'' and its own 
allegations; it must produce or demonstrate the existence of 
evidence that will support its claims. Id. at 325.
    The Celotex decision cited above was one of three decisions 
issued by the United States Supreme Court in 1986 that 
clarified the appropriate placement of the burden and legal 
standard in the contest of a Rule 56 motion. See also 
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 
475 U.S. 574 (1986); Anderson v. Liberty Lobby, 477 U.S. 242 
(1986). Prior to 1986, some lower federal courts had been 
confused and believed that Rule 56 would unfairly disadvantage 
plaintiffs unless it were read to place the burden on the 
moving party-defendant of ``negating the [plaintiff's] claim.'' 
Celotex, 477 U.S. at 323. In many respects, the legal standard 
proposed by the new Republican Majority of this Committee, 
which will be discussed further in the next section, appears to 
suffer from this same type of confusion. As the Supreme Court 
explained in its 1986 trilogy of decisions on the subject, Rule 
56's intended purpose ``to isolate and dispose of factually 
unsupported claims'' can be met only if the party that will 
ultimately bear the burden of proof also is required in 
responding to the motion to bear the burden of demonstrating 
that it has at least some substantial ``evidentiary materials'' 
other than ``the mere pleadings themselves'' to support its 
allegations. Celotex, 477 U.S. at 323-25.\1\
---------------------------------------------------------------------------
    \1\ Rule 56, of course, permits federal courts to defer ruling on a 
summary judgment motion, if the party opposing the motion submits an 
affidavit attesting under oath ``that he cannot for reasons stated 
present by affidavit facts essential to justify his opposition.'' Fed. 
R. Civ. P. 56(f). This mechanism provides federal courts with latitude 
to avoid any unfairness that might result from granting summary 
judgment where a party can demonstrate valid reasons why it cannot meet 
its normal burden under Rule 56 but nonetheless will be able to carry 
its burden of proof at trial.
    The FCEA provides the Committee with similar discretion. Section 
383(d) of the Act specifically states that the Committee may 
``postpone[  ] its disposition'' of a pre-answer motion. See Ziebarth 
v. Smith, H. Rep. No. 94-763 at 7 (1975). Such postponements, however, 
should not even be considered unless a contestant can identify specific 
reasons why he cannot now produce evidence, even in a preliminary form, 
to support his allegations but nonetheless can demonstrate that such 
evidence exists and can be produced at a hearing. Absent such a 
showing, a contestant should not be permitted to use the discovery 
procedures in the Act to engage in a ``fishing expedition'' in the hope 
of finding evidence to support otherwise baseless allegations. The 
contestant in the instant case has not even attempted to make such a 
showing, and in any event the deferral of a pre-answer motion does not 
alter the standard to be used in ultimately ruling on the motion. See 
Ziebarth, H. Rep. No. 94-763 at 16.
---------------------------------------------------------------------------
    Finally, it is worth noting that the legal standard 
established by House precedent and adhered to by the Committee 
in ruling on motions to dismiss for 25 years is supported by 
sound policy considerations. As the decision in Tunno v. Veysey 
recognized,

          It is perhaps stating the obvious but a contest for a 
        seat in the House of Representatives is a matter of 
        most serious import and not something to be undertaken 
        lightly. It involves the possibility of rejecting the 
        certified returns of a state and calling into doubt the 
        entire electoral process. Thus, the burden of proof 
        placed upon a contestant is necessarily substantial.

H. Rep. No. 92-626 at 10 (1971). For this reason, as we 
previously have recognized, ``[w]ritten into the woof and warp 
of the Act are assumptions of regularity that must be overcome 
by a Contestant, i.e., the regularity of the returns and the 
regularity of the actions by election officials.'' Young v. 
Mikva, H. Rep. No. 94-759 at 4 (1975). Our respect for the 
States and State election officials mandates that these 
``assumptions of regularity'' not be discarded based solely on 
a ``[c]ontestant's bare allegations of irregularity,'' election 
officials are presumed to have acted in accordance with State 
law, and errors will not be imputed without convincing 
evidence.'' McCuen v. Dickey, H. Rep. No. 103-109 at 6 (1993).
    An appropriately rigorous legal standard for ruling on 
motions to dismiss also is essential to protecting the 
efficient operations of the Committee and the House as a whole. 
Following the rationale first set fort in Tunno v. Veysey, we 
have observed that, absent ``a mechanism to enable the House 
and the Committee to quickly identify and dispose of those 
cases which are lacking in substance,'' we ``might, as 
experience has shown, spend many hours in fruitless, full-scale 
investigations that consume time which might otherwise be 
devoted to the legislative and representative process.'' 
Ziebarth v. Smith, H. Rep. No. 94-763 at 6 (1975). We further 
have observed that imposing on a contestant the burden of 
supporting his allegations with preliminary proof at the outset 
of an election contest is necessary ``to justify the committee 
in requiring a duly certified member to expend time and 
resources necessarily involved in preparation of a defense to 
such charges.'' Mack v. Stokes, H. Rep. No. 94-762 at 2 (1975).
    Any lowering or dilution of the legal standard used to 
resolve motions to dismiss could open the floodgates to a 
torrent of election contests that would have extremely damaging 
results on both the electoral process and the functioning of 
the House. Particularly if they perceive that members of the 
Majority party in the House may be willing to use election 
contests brought under the FCEA to press for partisan 
advantage, disappointed candidates from the Majority party will 
be eager to pursue election contests. At worst, a disappointed 
candidate may think he will be given a public forum and some 
apparent legitimacy for claims that he wants to assert against 
the candidate who just defeated him at the polls, in many cases 
with the hope that he may gain an advantage in mounting a 
future campaign for the seat. For 25 years, the Democratic 
Majority stood against those floodgates, by maintaining a 
consistent and appropriately high legal standard for resolving 
pre-answer motions to dismiss under the FCEA and by applying 
that standard in an evenhanded, nonpartisan manner. Out of 
proper respect for the electoral process and State election 
officials, and to avoid any further unnecessary disruption of 
the legislative and representative processes of the House and 
its members, whatever party is in the Majority in the future 
should do the same.

3. The Republican Majority's Confusion and Vacillation This Year on the 
                         Proper Legal Standard

    The position taken by the new Republican Majority on the 
proper legal standard for resolving motions to dismiss has been 
anything but consistent. At the initial Committee meeting held 
to appoint Task Forces to consider the four election contests 
filed this year, the Chairman of the Committee gave assurances 
that the new Majority would follow the precedents that had been 
established during the precious 25 years under the FCEA. The 
Chairman expressly disavowed any intent to depart from those 
precedents. See Transcript of Committee Meeting of Feb. 8, 
1995, at 19-22.
    Despite those assurances, the standard articulated and 
relied upon by the New Majority changed repeatedly during the 
proceedings for this and other election contests in 1995. In a 
memorandum distributed several weeks after the Committee 
meeting, the Republican Majority stated that, in their view, a 
contestant in election contest brought under the Act ``need not 
* * * provide sufficient evidence'' to overcome the 
``presumption of regularity'' that attaches to the 
certification of an election by State election officials. 
Instead, the Majority opined that a contestant merely ``must 
allege sufficient facts which could at a later stage, if 
supported by appropriate evidence, overcome the presumption.'' 
See March 13, 1995 Memorandum at 3. To return to the analogy to 
the Federal Rules of Civil Procedure discussed above, the 
Majority appeared to be advocating a legal standard analogous 
to that used by federal courts in ruling on motions under Rule 
12(b)(6), rather than Rule 56. A motion under Rule 12(b)(6) is 
not intended to challenge the factual basis for a plaintiff's 
allegations, but instead is designed solely to challenge the 
legal sufficiency of a plaintiff's claims assuming that all of 
the plaintiff's allegations are true. Thus, in contrast with 
the legal standard established in Tunno v. Veysey and every 
FCEA case that has followed it, a Rule 12(b)(6) standard is not 
designed to identify and weed out cases that lack ``sufficient 
supportive evidence'' to warrant further investigation. Tunno 
v. Veysey, H. Rep. No. 92-626 at 3.
    When we in the Minority, through Mr. Jefferson, the 
Democratic member on the Task Force, sought clarification of 
the statement in the Majority's memorandum, the Majority's 
position became even more perplexing. In response to a question 
from Mr. Jefferson, a representative of the Majority stated his 
view that the governing legal standard under the FCEA ``is 
analogous, although not exactly the same, analogous to a 
summary judgment motion-type situation, in the Federal Court 
venue,'' which is controlled by Federal Rule of Civil Procedure 
56. He went on, however, to describe his understanding of that 
standard by stating: ``I believe the appropriate standard is in 
fact to allege facts, not necessarily to provide proof at the 
pleading stage.'' See Transcript of March 15, 1995 Task Force 
Meeting at 7-12.
    When Mr. Jefferson, who is an attorney, pointed out that 
the Majority's representative had begun by identifying the 
appropriate standard as ``analogous to a summary judgment 
motion-type situation'' but concluded by describing a very 
different Rule 12(b)(6)-type standard, Mr. Boehner, the 
Republican Chairman of the Task Force, stepped in to attempt to 
clarify the Majority's position. Mr. Boehner stated his 
understanding of the FCEA as follows:

          Mr. Jefferson, in looking at the Federal Contested 
        Elections Act, it states pretty clearly that someone 
        who is going to allege to have been treated unfairly 
        must supply sufficient information * * *. We would 
        argue that the contestant simply should have sufficient 
        evidence to allege the facts that are subject to later 
        proof.

Id. at 14. To his credit, Mr. Boehner read the FCEA on this 
occasion accurately and consistent with Tunno v. Veysey and the 
precedents that followed it. However, our satisfaction with 
this statement of the governing standard by the Majority did 
not last long.
    The Majority offered another rendition of the governing 
legal standard in a memorandum dated March 22, 1995. That 
memorandum began its discussion of the governing legal standard 
with the somewhat puzzling statement that a ``pre-answer motion 
in the FCEA structure is analogous in some ways to a motion to 
dismiss under Fed. R. Civ. P. 12(b)(6) or a summary judgment 
motion under Fed. R. Civ. P. 56'' Id. at 4. This statement is 
akin to describing an animal as ``analogous in some ways'' to a 
mouse or an elephant; it ignores the significant differences 
between the two ``analogous'' standards and obscures the fact 
that one of those two very different standards in a appropriate 
analogy and the other most certainly is not. Having thus 
confused the issue at the outset, the Majority went on the 
advocate the adoption of a new legal standard for pre-answer 
motions in FCEA cases that would be virtually indistinguishable 
from the federal court standard set forth in Rule 12(b)(6). Id. 
at 4-5 (indicating that the Task Force should ``accept all of 
[the contestant's] allegations as true'' for purposes of 
considering the motion).
    Several weeks after releasing their March 22 memorandum, 
the Majority provided a separate memorandum to the Speaker and 
the Minority Leader of the House, in which yet a new and 
somewhat different version of the governing legal standard was 
proposed:

          The standard for analyzing a pre-answer motion to 
        dismiss is as follows: the contestant must make 
        credible allegations of irregularities and/or fraud 
        which, if subsequently proven true, would likely change 
        the outcome of the election. The contestee bears the 
        burden of showing either that the allegations are so 
        vague or unlikely that no proof is possible or that the 
        result would not be in doubt even if the allegations 
        were true.

  See May 8, 1995 Memorandum. This formulation of the 
Majority's proposed standard appeared to move away from the 
pure Rule 12(b)(6)-type standard earlier advocated in the 
Majority's previous memorandum, in that it suggested that a 
contestant's allegations need be accepted as true only if they 
are deemed ``credible.'' At the same time, it expressly placed 
on the contestee the burden of showing that the contestants' 
allegations are not credible, in direct conflict with the legal 
standard established in Tunno v. Veysey and subsequent House 
precedents.
    The Majority's final attempt a articulating a legal 
standard by which to judge a contestee's motion to dismiss came 
in a memorandum recommending that the Task Force in this case 
dismiss Anderson's Notice of Contest. That memorandum retained 
the statement from the Majority's May 8 memorandum that ``a 
contestant must make credible allegations of irregularities of 
fraud.'' See August 3, 1995 at 1. It did not, however, retain 
the earlier statement placing on the contestee the burden of 
demonstrating that allegations in the Notice of Contest are not 
credible. Instead, it simply ducked the question of who bears 
the burden of production and/or persuasion by stating: ``In 
judging whether a particular allegation is credible, a Task 
Force should consider not only the contestant's view and any 
supporting evidence, but any countervailing arguments and 
evidence available from the contestee or other sources.'' Id. 
at 2.
    We are compelled to make several observations about the 
Majority's conspicuous efforts to twist and contort the 
established legal standard governing FCEA pre-answer motions to 
keep alive these particular Republican election contests for as 
long as those contests served the Majority's partisan 
interests.
    First, even setting aside the winding path that the 
Majority followed to arrive at its final formulation of a 
proposed legal standard, it is far from clear how that standard 
could be implemented in practice. Although it is possible to 
imagine allegations that are so incredible on their face that 
they could be dismissed without reference to any evidence, most 
allegations (including one or two of Anderson's allegations in 
this case) are not inherently credible or not credible. What 
ordinarily makes an allegation credible is proof--either in the 
form of admissible evidence of the type presented at a hearing, 
or preliminary evidence such as affidavits that establish the 
existence or likely existence of such admissible evidence. If a 
contestant lacks any form of substantial proof or evidence, 
then his allegations by necessity are based on speculation and 
surmise, and his Notice of Contest is nothing more than a 
request to conduct a ``fishing expedition'' in the hope of 
finding evidence to support that speculation. Thus, the only 
rational and useful construction of the Majority's ``credible 
allegations'' formulation is one that would require contestants 
to produce some form of evidence in support of their 
allegations, thereby rendering it one and the same with the 
standard established in Tunno v. Veysey and the House 
precedents that followed that decision.
    Second, contrary to the suggestion in a number of the 
Majority's memoranda, a standard of the type proposed by the 
Majority this year has no precedent in the highly partisan 
dissenting statements of Republican members in Paul v. Gammage, 
H. Rep. No. 95-243 (1977) and certain other election contests 
from the late 1970s and early 1980s--all of which involved 
Republican contestants. In Paul v. Gammage, both the Democratic 
Majority and the Republican dissent were in agreement that the 
appropriate standard for judging a pre-answer motion under the 
FCEA was analogous to the standard used by federal courts to 
resolve summary judgment motions under Rule 56. Indeed, the 
Republican dissent in Paul v. Gammage specifically described 
the governing standard as follows: ``The nearest analogy in 
Federal civil practice is a Rule 56 Motion for Summary 
Judgment.'' H. Rep. No. 95-243 at 8. That Republican dissent, 
however, misunderstood the proper operation of Rule 56 and 
assumed that under the rule ``the moving party must carry the 
burden of supporting his motion'' by showing that the 
plaintiffs claim was without merit. Id. But, as discussed in 
the preceding section, the Supreme Court in its 1986 trilogy of 
decisions on the subject rejected that misreading of Rule 56: 
Where a defendant files a Rule 56 motion ``pointing out * * * 
that there is an absence of evidence to support the [plaintiffs 
case],'' the plaintiff bears the burden of producing at least 
preliminary evidence ``showing that there is a genuine issue 
for trial.'' Celotex, 477 U.S. at 324-25, accord Matsushita 
Electric, 475 U.S. at 585-87, Anderson, 477 U.S. at 247-52.
    Finally, the vacillation and partisan approach of the 
Majority with respect to the appropriate legal standard 
governing contestee's motion to dismiss the Anderson contest 
has contributed greatly to the delay and has detracted 
significantly from the fairness of the proceedings. In his 
motion for reconsideration of the Task Force's recommendation 
that his Notice of Contest be dismissed, Anderson has pointed 
to some of the conflicting statements made by the Majority 
(summarized above) and has suggested that he has been forced to 
attempt to hit a moving target. At times, the Majority has 
indicated that all Anderson need do to survive the pre-answer 
motion was to hurl strongly-worded allegations, whether 
supported or not; in the end, Anderson's Notice of Contest was 
dismissed largely because there simply was no evidence 
whatsoever to support the allegations that Anderson had made. 
Had the Majority adhered to its initial commitment to follow 
the 25 years of unbroken precedents beginning with Tunno v. 
Veysey, Anderson would have known exactly what to expect from 
the outset, and his Notice of Contest could have been dismissed 
many months and tens of thousands of dollars ago.

     4. the effect on this case of the majority's approach to the 
                       appropriate legal standard

    The Anderson election contest, which the Majority finally 
agreed to dismiss, provides a clear illustration of the 
unnecessary delay and other negative consequences that would 
result from a dilution of the legal standard established in 
Tunno v. Veysey and consistently followed prior to this year. 
As we indicated at the outset, Anderson has set forth a laundry 
list of unsupported allegations of various supposed 
irregularities in the election process, making it impractical 
to discuss each of them one-by-one. We instead will focus here 
solely on Anderson's most serious allegation--his allegation of 
widespread ``bribery'' of voters--to provide an example of how 
the Majority's approach to this case is completely at odds with 
the FCEA and sound public policy.
    In his Notice of Contest, Anderson baldly alleged that 
unidentified ``poll workers'' had offered ``bribes to voters,'' 
in violation of federal criminal law. See notice of Contest 
para. 25 B. This allegation on its face, although shocking, as 
Anderson undoubtedly intended it to be, is neither inherently 
credible or incredible. We would agree that it should be 
investigated vigorously if there were any evidence or good 
reason to believe it true.
    Anderson submitted to the Committee two written statements 
in support of his bribery allegation. The first, attributed to 
a man referred to as ``William (Big-Foot) Hunt,'' stated in 
pertinent part:

          I personally observed four poll workers greeting 
        people on the outside (Maynor poll workers). They were 
        known to be cupping their hands and pressing $5 or 
        $10.00 bills into people's hand, usually $10.00 dollars 
        were given to blacks. * * * I know of 2 black people 
        that personally told me they were paid cash to vote for 
        ``Glenn the Man.'' They are from Fairmont.

The second statement was signed by two persons, Ethel Revels 
and Clyde Cox, and states in its entirety:

          On November 8 at 8 o'clock a.m. Clyde Cox and Ethel 
        Revels went to Orrum to vote. When we got to Orrum to 
        vote and park a colored man came up to us--said if we 
        vote for Glenn Maynor they would pay us $5.00 a vote.

    What is most striking about these two ``supporting'' 
statements is that neither one says anything whatsoever about 
alleged bribery in connection with the Congressional election 
between Mr. Anderson and Congressman Rose. Instead, each 
statement appears to allege improprieties with respect to the 
race for Robeson County Sheriff, in which one of the candidates 
was Glenn Maynor. As District Attorney Britt reported, the 
North Carolina SBI thoroughly investigated these allegations 
and statements. Mr. Hunt, the person to whom Anderson 
attributed the first statement, refused to make any statement 
to the SBI, and so the statement attributed to him could not be 
confirmed. The SBI also interviewed the two people who signed 
the second statement as well as the man whom they alleged had 
offered them $5.00 to vote for Mr. Maynor for sheriff. Based on 
those interviews, and their observation of the individuals 
involved, the SBI agents concluded that the allegations in the 
second statement also ``could not be substantiated.''
    In an effort to expand his allegations of bribery of voters 
beyond three persons, Anderson next filed with the House an 
Addendum to his Notice of Contest which alleged that 
Congressman Rose's campaign had contributed $5,600 and $3,000 
to two local ``get-out-the-vote'' organizations. Anderson's 
Addendum further alleged that each of those two organizations 
had failed to submit some required documentation to the State 
Board of Elections. Based  solely on these factual allegations, 
which were never themselves adequately supported, Anderson 
alleged, ``[u]pon information and belief,'' that these two 
organizations must have operated as ``shell'' organizations for 
the purchase of votes.'' Anderson took this preposterously 
strained and unsupported allegation a step further by arguing 
to the Task Force that, because Congressman Rose's campaign 
allegedly contributed a total of $8,600 to the organizations in 
question, and because two persons had made an unsubstantiated 
allegation that a ``colored man'' had offered them $5.00 to 
vote for a candidate in the local sheriff's race, the Task 
Force should find that Congressman Rose's campaign had 
``bribed'' 1,720 voters in the November 1994 Congressional 
election. See Contestant's Response to Motion to Dismiss 
Election Contest at 21.
    These ``bribery'' allegations are as worthless and half-
baked as any that have ever been advanced in any election 
contest with which we are familiar. To accept such allegations, 
one would need to be willing to infer that: (1) because two 
people alleged that they were offered $5.00 to vote in a County 
sheriff's election, votes in the Congressional election 
involving that County were routinely being bought and sold for 
$5.00; and (2) every dollar of any contribution made to an 
organization that allegedly failed to file a required report 
with the State Board of Elections must have been used to bribe 
voters. In a federal civil action, we are confident that such 
dubious allegations and inferences not only would be dismissed 
on summary judgment under Rule 56, but also likely would be 
subject to sanctions under other federal rules and statutes. It 
is equally clear that they would be rejected quickly on a pre-
answer motion under the standard established in Tunno v. Veysey 
and followed for 25 years prior to this year.\2\
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    \2\ Indeed, even the dissenting and supplemental statements filed 
by Republican members of the Committee in several cases in the late 
1970s and early 1980s expressly recognized that ``an allegation of 
fraud or mistake on the basis of information and belief alone is 
insufficient as a matter of law.'' Pierce v. Pursell, H. Rep. No. 95-
245 at 4 (1977) (Republican Supplemental Views).
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    Nevertheless, because the Republican Majority was in the 
process of rethinking what legal standard applied, the 
Republican members of the Task Force refused initially to grant 
contestee's motion to dismiss Anderson's bribery and other 
similarly vague and supported allegations. Instead, the Task 
Force insisted over our objection on holding a field hearing in 
Lumberton, North Carolina, at taxpayers' expense, to look 
further into Anderson's allegations. This field hearing was 
used to full partisan advantage, with Anderson announcing 
during the hearing his intent to run again for the seat in the 
North Carolina 7th District in 1996 and attaching the Task 
Force's announcement of the hearing to his fund-raising 
solicitations. During the Lumberton hearing, Anderson repeated 
his allegations of bribery and projected for the assembled 
crowd revised estimates of the thousands of votes that he 
surmised must have been ``bought'' for $5.00 a piece--all 
without providing any evidence of bribery affecting even a 
single vote in the Congressional election. When asked whether 
he had evidence to support his bribery allegations, Anderson 
candidly responded that he had filed his Notice of Contest to 
obtain the subpoena power available in discovery under the FCEA 
so that he could look for evidence of bribery. This is 
precisely the type of ``fishing expedition'' that the Act (and 
the standard adopted in Tunno v.Veysey) was intended to 
prevent.
    Even after the field hearing, the Majority members of the 
Task Force refused to take action on contestee's motion to 
dismiss Anderson's Notice of Contest. They instead summoned two 
members of the North Carolina SBI to Washington to present and 
explain the SBI's investigative report. Over a period of three 
days, the SBI officials were required to respond to questions 
and criticism from the Majority staff and consultants on issues 
such as why the SBI did not administer polygraph tests to the 
two persons who alleged they had been offered $5.00 and the one 
person who allegedly made that offer in connection with the 
County sheriff's race. This was perhaps the epitome of a lack 
of federal respect for State election processes. Not only did 
the Task Force Majority hold in doubt the State-certified 
election results in the North Carolina 7th District for many 
months, but its staff, which had never interviewed any of the 
relevant witnesses, second-guessed two experienced law 
enforcement officers on whether it was necessary to use a 
polygraph in investigating a single incident of alleged bribery 
in a County sheriff's race.
    In the end, much belatedly, the Majority finally agreed to 
recommend dismissal of Anderson's Notice of Contest. It did so 
based on a written recommendation, which concluded:

          One couple has alleged that they were offered bribes 
        [in connection with the County sheriff's race]. A 
        combination of this one specific allegation, general 
        allegations of widespread bribery [made solely by 
        Anderson], and the Rose campaign's payments to certain 
        ``community groups'' is not sufficient to conclude that 
        discovery would uncover bribery so severe that it could 
        cause a changed result in the election.

See August 3, 1995 Memorandum 3. All of this, of course, was 
known to the Committee shortly after Anderson filed his Notice 
of Contest and Addendum. It did not require a field hearing, 
tens of thousands of taxpayer dollars, months of time and 
distraction for the Committee and Congressman Rose, or a review 
of the SBI investigative file to know that Anderson's 
unsupported allegations were inadequate to sustain the 
contestant's burden under the FCEA. Had the Republican Majority 
applied the established legal standard from Tunno v. Veysey in 
an even-handed and nonpartisan manner, as the Democratic 
Majority did for the prior 25 years, this contest could have 
been dismissed many months ago.
    We can only hope that the new Majority will profit from 
this experience and that the House, its individual members, 
and, most importantly, the voters and taxpayers of the United 
States will be spared any future repetition of the type of 
costly and potentially destructive process that occurred in 
connection with this election contest. In future proceedings 
under the FCEA, the Committee should adhere steadfastly to the 
standard adopted in Tunno v. Veysey and avoid the temptation to 
use such proceedings to seek partisan advantage.

                                   Vic Fazio.
                                   Steny Hoyer.
                                   Ed Pastor.
                                   Sam Gejdenson.
                                   William J. Jefferson.