[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.
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\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.
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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\
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\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.
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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\
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\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.
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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\
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\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).
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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\
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\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.
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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\
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\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\
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\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\
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\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).
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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.