[House Report 104-853]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     104-853
_______________________________________________________________________


 
          DISMISSING THE ELECTION CONTEST AGAINST CHARLES BASS

                                _______
                                

 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. 539]

    The Committee on House Oversight, having had under 
consideration an original resolution, dismissing the election 
contest against Charles F. Bass, report the same to the House 
with the recommendation that the resolution be agreed to.

                            committee action

    On May 10, 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 does not provide new budget authority, new 
spending authority, new credit authority, or an increase or 
decrease in revenues or 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 finding 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. 381, et seq.) by Mr. Joseph S. 
Haas, Jr. (contestant) against Mr. Charles F. Bass (contestee). 
The Task Force consisted of the Honorable John Boehner, 
Chairman, the Honorable Vern J. Ehlers, and the Honorable 
William J. Jefferson.
    On March 15, 1995, the Task Force voted unanimously to 
dismiss the contest.

                           statement of facts

    On December 6, 1994, Joseph S. Haas, Jr. filed with the 
Clerk of the House of Representatives a document captioned 
``Notice of Contest.'' The document, prepared by Mr. Haas, was 
filed pursuant to the Federal Contested Elections Act 
(``FCEA'').\1\

                                standing
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    \1\ 2 U.S.C. Sec. Sec. 381-396 (1988).
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    The first issue is whether the Act permits Mr. Haas to file 
a Notice of Contest, i.e., whether Mr. Haas has standing to 
bring such action as a contestant. The FCEA specifically 
provides that only a candidate for election to the House of 
Representatives in the last preceding election may bring such 
an action.\2\ ``Candidate'' is defined as an individual whose 
name was printed on the official ballot for election to the 
House of Representatives of the United States, or if their name 
was not printed on the ballot, sought election to the House of 
Representatives by soliciting write-in votes, provided they 
were qualified for such office and write-in votes were 
permitted under the laws of the state.\3\ Mr. Haas was a 
candidate for the Republican nomination, losing to Mr. Bass in 
the primary election.\4\ Mr. Haas alleges that he was a write-
in candidate in the general election and its qualified for the 
office. New Hampshire law permits write-in votes for 
congressional candidates. On the face of the Notice of Contest 
document, Mr. Haas would have apparent standing to contest the 
election.
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    \2\ 2 U.S.C. Sec. 382(a) (1988).
    \3\ 2 U.S.C. Sec. 381(b) (1988).
    \4\ Under N.H. Rev. Stat. Ann. Sec. 653:8, the primary election was 
held September 13, 1994, and the general election was held on November 
8, 1994.
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                             timing/notice

    The Notice of Contest appears to have been served upon 
Congressman Bass and filed within the appropriate time 
structures of the FCEA.

                          response by mr. bass

    Mr. Bass did not respond to the Notice of Contest. 
Notwithstanding such failure, the burden remained upon Mr. Haas 
to provide credible allegations to the House sufficient to 
support a claim under the FCEA.\5\
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    \5\ 2 U.S.C. Sec. 385 (1988).
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                            basis of contest

    In light of relevant New Hampshire statutes, Mr. Haas' 
Notice of Contest and his attached affidavit fail to allege 
facts or provide any legal basis which would support a 
successful contest under the FCEA.
    The substance of Mr. Haas' claim is that no candidate, 
except himself, in the last election to the House of 
Representatives of the United States from New Hampshire filed 
an affidavit attesting to the fact that they were ``not a 
subversive person'' as defined in New Hampshire statutes.\6\ 
Based on this claim, Mr. Haas states that he has a right to the 
office as the sole properly qualified candidate.\7\
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    \6\ N.H. Rev. Ann. Sec. 648:6 (II) (1995).
    \7\ To resolve this contest, it was not necessary for the Task 
Force to address the issue of whether ballot or office qualifications 
can be raised in a contest filed pursuant to the FCEA.
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    In the past, New Hampshire law did require a candidate for 
any election to file an oath that they were not a ``subversive 
person'' with their declaration of candidacy. No candidate for 
any office appearing upon the New Hampshire ballot has been 
required to sign such a loyalty oath since 1996. In December of 
1966 the New Hampshire Attorney General notified the Secretary 
of State, who is the Chief Election Officer of the State, that 
the United States Supreme Court had declared such an oath as 
provided for in New Hampshire statute unconstitutional.\8\ The 
particular provision of New Hampshire law cited by Mr. Haas was 
repealed by the New Hampshire legislature effective June 21, 
1994.\9\
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    \8\ Letter from Deputy New Hampshire Secretary of State to Clerk of 
New Hampshire House of Representatives, December 28, 1994.
    \9\ N.H. Rev. Stat. Ann. Sec. 648 (repealed effective June 21, 
1994).
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                               conclusion

    The official certification of election submitted to the 
Clerk of the House by the New Hampshire Secretary of State 
provides prima facie evidence of the regularity and correctness 
of state election returns and of Mr. Bass' presumption of 
entitlement to the seat.
    Contestant Haas need not in his Notice of Contest provide 
sufficient evidence to the Task Force to overcome this 
presumption, but the Contestant must provide credible 
allegations of irregularities or fraud which, if subsequently 
proven true, would likely change the outcome of the election 
and overcome this presumption. On the basis of Mr. Haas' Notice 
of Contest, accepting the facts as alleged as true, and making 
all inferences most favorable to Mr. Haas' position, his Notice 
fails to present any basis on which the Committee could 
overcome, rebut, or contradict this presumption. The Committee 
therefore concludes, that this contest should be dismissed.
                           SUPPLEMENTAL VIEWS

    The decision to dismiss the contest brought by Joseph Haas 
is a proper one, though we want to state clearly the rationale 
for doing so. The committee dismissed this matter solely 
because the contest was based on an unconstitutional and 
repealed statute.
    In bringing his claim, the contestant relied exclusively on 
a particular statute of the state of New Hampshire. The statute 
in question is unconstitutional--some twenty-nine years ago, in 
1966, the Attorney General of New Hampshire determined the 
unconstitutionality of the provision, and declared that it 
would no longer be enforced. The particular provision was 
repealed by the New Hampshire legislature effective June 21, 
1994, prior to the last general election.
    Contestant's reliance on an unconstitutional and repealed 
statute to complain about the 1994 general election is 
misplaced, and the committee is compelled to dismiss for that 
reason alone.

                                   Vic Fazio.
                                   Sam Gejdenson.
                                   Steny Hoyer.
                                   Bill Jefferson.
                                   Ed Pastor.