    [House Report 105-416]
    [From the U.S. Government Publishing Office]

    _______________________________________________________________________
    105th Congress                                                   Report
     2d Session               HOUSE OF REPRESENTATIVES              105-416
    _______________________________________________________________________

            DISMISSING THE ELECTION CONTEST AGAINST LORETTA SANCHEZ

                                   ----------

                                     REPORT

                                     of the

                          COMMITTEE ON HOUSE OVERSIGHT

                                       on

                                    H.R. 355

                                 together with

                                 MINORITY VIEWS

     February 12, 1998.--Referred to the House Calendar and ordered to be
                                    printed

    _______________________________________________________________________

    105th Congress                                                   Report
      2d Session              HOUSE OF REPRESENTATIVES              105-416
    _______________________________________________________________________

                        DISMISSING THE ELECTION CONTEST

                            AGAINST LORETTA SANCHEZ

                                   __________

                                     REPORT

                                     of the

                          COMMITTEE ON HOUSE OVERSIGHT

                                       on

                                    H.R. 355

                                 together with

                                 MINORITY VIEWS

     February 12, 1998.--Referred to the House Calendar and ordered to be
                                    printed

                        U.S. GOVERNMENT PRINTING OFFICE
    46-426                     WASHINGTON : 1998

                          COMMITTEE ON HOUSE OVERSIGHT

                       BILL THOMAS, California, Chairman
    ROBERT W. NEY, Ohio                  SAM GEJDENSON, Connecticut
    VERNON J. EHLERS, Michigan           STENY H. HOYER, Maryland
    JOHN A. BOEHNER, Ohio                CAROLYN C. KILPATRICK, Michigan
    KAY GRANGER, Texas
    JOHN L. MICA, Florida

                        Cathy Abernathy, Staff Director
                     Robert Baskin, Minority Staff Director

                                     ------

        Task Force for The Contested Election in the 46th Congressional
                             District of California

                      VERNON J. EHLERS, Michigan, Chairman
    ROBERT W. NEY, Ohio                  STENY H. HOYER, Maryland

                                      (II)

                                C o n t e n t s

                                  ----------
                                                                       Page
    1. Majority Report...............................................     1
    2. Appendices:
        A. Chronology of Events......................................    17
        B. Investigation by the Task Force...........................    29
        C. Field Hearing.............................................    88
        D. Interrogatories Issued by the Committee...................    93
        E. Subpoenas Issued by the Committee.........................   237
        F. Investigations by State and Local Authorities.............   337
        G. Contestant's Criminal Complaint Against Hermandad Mexicana
          Nacional...................................................   425
        H. Federal Court Decisions...................................   508
        I. INS Production............................................   594
        J. Quashing and Modifying Subpoenas..........................   777
        K. Filings of the Parties....................................   918
        L. The Federal Contested Election Act........................  1000
        M. Critique of Proportional Reduction........................  1022
    3. Supplemental Views:
        A. Minority Views of the Honorable Sam Gejdenson, the
          Honorable Steny Hoyer, and the Honorable Carolyn Kilpatrick  1025
        B. Minority Views of the Honorable Steny Hoyer and the
          Honorable Carolyn Kilpatrick...............................  1063
        C. Minority Views of the Honorable Carolyn Kilpatrick........  1065

                                      (III)

    105th Congress                                                   Report
     2d Session             HOUSE OF REPRESENTATIVES                105-416
    _______________________________________________________________________

            DISMISSING THE ELECTION CONTEST AGAINST LORETTA SANCHEZ

                                    _______

     February 11, 1998.--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

                                 MINORITY VIEWS

                           [To accompany H. Res. 355]

        The Committee on House Oversight, having had under
    consideration the resolution (H. Res. 355), dismissing the
    election contest against Loretta Sanchez, reports the same to
    the House with the recommendation that the resolution be agreed
    to.

            dismissing the election contest against loretta sanchez

        The Committee on House Oversight, having had under
    consideration the resolution H. Res. 355, dismissing the
    election contest against Loretta Sanchez, reports the same to
    the House with the recommendation that the resolution be agreed
    to.

                                committee action

        On February 4, 1998, by a vote of 8-1, a quorum being
    present, the Committee agreed to a motion to report the
    resolution favorably to the House. Yeas: Mr. Thomas, Mr. Ney,
    Mr. Ehlers, Mr. Boehner, Ms. Granger, Mr. Gejdenson, Mr. Hoyer,
    Ms. Kilpatrick. Nay: Mr. Mica.

                          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) of 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 the contested election

        Pursuant to rule 16(b) of the Rules of Procedure of the
    Committee on House Oversight, the Honorable William M. Thomas,
    Chairman of the Committee, established a Task Force on January
    8, 1997, 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
    Elections Act (FCEA), 2 U.S.C. Sec. Sec. 381-396 (1969), by
    Robert Dornan against Loretta Sanchez.

                               statement of facts

    Introduction

        This report relates to the election contest filed
    concerning the 1996 election for the House of Representatives
    seat for the 46th Congressional District of California
    (``District''). As discussed below, this election contest
    arises under the United States Constitution, Article V, Sec. 1,
    and the FCEA, 2 U.S.C. Sec. Sec. 381-396.

    1996 Election for the 46th Congressional District of California

        The principal candidates for the seat in the House of
    Representatives in the election for the Forty-sixth
    Congressional District of California on November 5, 1996 were
    incumbent Representative Robert K. Dornan and challenger
    Loretta Sanchez. On November 22, 1996 the Orange County
    Registrar of Voters, Rosalyn Lever, certified Ms. Sanchez the
    winner by 984 votes. Mr. Dornan requested a recount. On
    December 9, 1997, as a result of the recount, Ms. Sanchez's
    margin of victory was reduced to 979 votes.

    Proceedings involving California agencies

        Less than a month after the election, on December 4, 1997,
    the California Secretary of State, Bill Jones, announced the
    opening of an investigation of vote fraud during the 1996
    election in the Forty-sixth Congressional District of
    California. Orange County District Attorney, Michael Capizzi,
    also announced that his office was undertaking a similar
    investigation. On January 14, 1997, the Orange County District
    Attorney conducted a search, under warrant, of the offices of
    Hermandad Mexicana Nacional, a Latino community service
    organization, alleged to be at the center of an effort to
    register and encourage non-citizens to vote in the 1996
    elections. At that time the Los Angeles District Office of the
    Immigration and Naturalization Service assisted Secretary of
    State Jones in identifying non-citizens who may have voted.\1\
    ---------------------------------------------------------------------------
        \1\ See Appendix F.
    ---------------------------------------------------------------------------

    Proceeding before the Committee on House Oversight

        On December 26, 1997, Mr. Dornan filed a Notice of Contest
    with the Committee (``Dornan's Notice'') under jurisdiction
    granted by the U.S. Constitution \2\ and the FCEA.\3\ On
    January 7, 1997, Ms. Sanchez was sworn in as a Member of the
    105th Congress.\4\ On January 8, 1997 the Committee met and
    formed a Task Force to handle this contest. Committee Chairman
    William M. Thomas appointed two of the three Task Force
    members, the Honorable Vernon Ehlers (R-MI, Chairman of the
    Task Force) and the Honorable Robert Ney (R-OH). After more
    than a month of delay, on February 11, 1997, the Committee
    appointed the Democratic member to the Task Force, the
    Honorable Steny Hoyer (D-MD).
    ---------------------------------------------------------------------------
        \2\ U.S. Const. art I, Sec. 5 (``Each House shall be the Judge of
    the Elections, Returns and Qualifications of its own Members * * * '').
        \3\ U.S.C. Sec. Sec. 381-396 (providing procedural framework in the
    House of Representatives for a candidate to contest the election of a
    Member of the House of Representatives).
        \4\ This is in keeping with the traditions of the House. See, 105
    Cong. Rec. 14 (195(); 77 Cong. Rec. 74 (1933). See also Young v. Mikva,
    H.R. Rep. No. 244, 95th Cong., 1st Sess. 5 (1977); Ziebarth v. Smith,
    H.R. Rep. No. 763, 94th Cong., 1st Sess. 15 (1975). Under those
    precedents, a certificate of election must be afforded a strong
    presumption of legality and correctness. Ziebarth v. Smith, H.R. Rep.
    No 763, 94th Cong., 1st Sess., 15 (1975); Gormley v. Goss, H.R. Rep.
    No. 839, 73d Cong., 2d Sess. (1934). In contrast, McCloskey v.
    McIntyre, H.R. No. 58 99th Cong. 1st Sess. 91985) represents a gross
    departure from the precedents of the House.
    ---------------------------------------------------------------------------
        On January 31, 1997, Ms. Sanchez filed a Motion to Dismiss
    Notice of Election Contest or, in the Alternative, for a More
    Definite Statement (``Sanchez's Motion''). On February 10,
    1997, Mr. Dornan submitted an Opposition to Motion to Dismiss
    or, in the Alternative, Response to Motion for a More Definite
    Statement detailing his allegations of voter fraud. On February
    12, 1997, the Task Force received a letter from Ms. Sanchez
    requesting that the Task Force ``withhold consideration of
    [her] motion'' until the Task Force conducted a hearing in
    Orange County, California.5
    ---------------------------------------------------------------------------
        \5\ See Appendix C: April 19th Hearing.
    ---------------------------------------------------------------------------
        On February 26, 1997, the Task Force met for the first
    time. At the meeting, Task Force Chairman Ehlers acknowledged
    Ms. Sanchez's request for a hearing in the District and
    recommended that the request be granted. The Task Force voted
    to postpone the disposition of Ms. Sanchez's Motion to Dismiss
    until a hearing on the merits.6 The hearing was
    scheduled in Orange County to allow voters, election workers,
    and local officials access to the hearing.
    ---------------------------------------------------------------------------
        \6\ Postponement of disposition on the Motion to Dismiss triggered
    the FCEA's discovery provisions. 2 U.S.C Sec. 392-  . As contemplated
    by the statute, Ms. Sanchez's answer was due ten days after the
    postponement of her Motion to Dismiss, or March 10, 1997. Id. On the
    same date, Mr. Dornan's discovery period began, lasting until April 9,
    1997. Ms. Sanchez's discovery period began on April 9, 1997 and lasted
    until May 8, 1997.
    ---------------------------------------------------------------------------
        On April 19, 1997, in Orange County, California, the Task
    Force held a hearing on the merits. During the hearing, the
    Task Force heard presentations from Mr. Dornan and Ms. Sanchez
    and their counsel, as well as testimony from several witnesses,
    including Secretary Jones, District Attorney Capizzi, Orange
    County Registrar of Voters Rosalyn Lever, Director of the Los
    Angeles Region of the INS, Richard Rogers, and former, acting
    California Secretary of State, Tony Miller. After each
    presentation, Task Force members questioned the witness.
    7
    ---------------------------------------------------------------------------
        \7\ See Appendix C.
    ---------------------------------------------------------------------------

                              dornan's allegations

        In his Notice, Mr. Dornan alleged the following grounds for
    contesting the election: (a) that there were approximately
    1,985 more ballots counted than voters voting who were
    accounted for in county records; (b) that illegal votes were
    cast in that persons cast multiple votes or voted from business
    addresses; (c) that absentee ballots were cast improperly; (d)
    that under-age voters and non-citizens voted; (e) that
    convicted felons may have voted; (f) that the precinct board
    made errors sufficient to change the result of the election;
    and (g) that there was an error in the vote-counting programs
    or summation of ballot counts.
        At the April 19, 1997 hearing, Mr. Dornan narrowed the
    allegations upon which his Notice was based to the following:
             Non-citizens voting; and
              Voting irregularities such as improper delivery of
            absentee ballots, double voting and phantom voting.
        In support of these allegations, Mr. Dornan submitted,
    among other things, affidavits and witness statements,
    statistical charts, newspaper accounts, and
    correspondence.8
    ---------------------------------------------------------------------------
        \8\ Task Force for the Contested Election in the 46th Congressional
    District of California: Hearings on the Merits, Contestant's Brief pp.
    88-133.
    ---------------------------------------------------------------------------

                               sanchez's response

        Ms. Sanchez's Motion argued for dismissal of the election
    contest on the following procedural grounds: 9 (a)
    failure to exhaust state level remedies; (b) failure to plead
    claim with particularity; (c) failure to make an actual claim
    for the contested seat and; (d) failure to file Notice of
    Contest within the time 10 prescribed by 2 U.S.C.
    Sec. 382 (a).
    ---------------------------------------------------------------------------
        \9\ On March 12, 1997, Ms. Sanchez filed a Renewed Motion to
    Dismiss Notice of Election Contest. Because the Committee had postponed
    the disposition of Ms. Sanchez's original Motion, there was no need for
    a Committee ruling on the Renewed Motion.
        \10\ Ms. Sanchez alleges that the Notice of Contest was not timely
    filed with the Clerk of the House on December 26, 1996. The Notice was
    served on Ms. Sanchez on December 26, 1996 and a copy was provided to
    the Clerk of the House on that same date. This filing is sufficient to
    satisfy the notice requirements of 2 U.S.C. Sec. 382 (a).
    ---------------------------------------------------------------------------
        Ms. Sanchez also argued that Mr. Dornan failed to make
    ``credible allegations of irregularities of fraud which, if
    subsequently proven true, would likely change the result of the
    election.'' 11
    ---------------------------------------------------------------------------
        \11\ Anderson v. Rose, H. Rep. 104-852, 104th Cong., 2d Sess. 6
    (1996) See also: (General arguments in pleadings are not sufficient)
    (Duffy v. Mason, 48th Congress (1880), Hinds' 942). (Allegations that
    are vague and uncertain as to particulars do not meet the requirement)
    (see Gormley v. Goss, 73d Congress, 5th District of Connecticut, H.
    Rep. 7-893 (1934); Chandler v. Burnham, 73 Congress 20th District of
    California, H. Rept. 73-1278 (1934)). Allegation of fraud etc. in the
    pleadings, sufficient to change the result of the election, should
    disclose with particularity, what, when, where, how much and by whom
    (see, Duffy v. Mason, supra; Public Law 91-138, section 3(b)) Wilson v.
    Hinshaw, H. Rep. 94-761 94th Cong., 1st Sess. 3-4 (1975); Saunders v.
    Kelly, H. Rep. 95-242, 95th Cong. 1st Sess. 3; Hendon v. Clarke, Comm.
    H. Rep. No. 98-453, 98th Cong. 1st Sess. 4 (1983).
    ---------------------------------------------------------------------------
        Ms. Sanchez further argued that, where there is no
    allegation how any illegal vote was actually cast, those
    ``votes [determined to actually be illegal] presumably would be
    deducted proportionally from both candidates, according to the
    entire vote returned for each.'' 12
    ---------------------------------------------------------------------------
        \12\ See, e.g., Macy v. Greenwood, H. Rep. 1599, 82nd Cong., 2d
    Sess. (1952) reported in 2 Deschler's Precedents, Ch. 9, para. 56.4
    (1977)). In her Motion to Dismiss (Appendix The Contestee suggests that
    any invalid votes ought to be reduced in proportion to the vote tallies
    of the candidates and thus that it would require 97,900 illegal votes
    to render the true outcome of the election uncertain. However, it is
    possible that all of the illegal votes may have been cast for the
    Contestee and thus, if the number of illegal ballots is greater than
    the margin, the true outcome of the election may be uncertain. It is
    disturbing that an election in which over 90,000 illegal ballots have
    been cast could be accepted as a legitimate measure of the will of the
    people. See Appendix M.
    ---------------------------------------------------------------------------

          discovery provisions of the federal contested elections act

        At its first meeting on Wednesday, February 26, 1997, the
    Task Force had before it the pleadings filed by Mr. Dornan, his
    Notice of Election Contest and Ms. Sanchez's Motion to Dismiss
    and In The Alternative For A More Definite Statement. In
    addition, the Task Force had received from Ms. Sanchez a
    request that it withhold consideration of her motion and
    conduct a hearing in Orange County ``as soon as practicable.''
    In response to Ms. Sanchez's request and pursuant to FCEA
    Sec. 383(d), a disposition of Ms. Sanchez's Motion to Dismiss
    was postponed until a hearing on the merits could be conducted.
        This represents the first time that the House has moved
    forward with a hearing on the merits of an election contest
    under the FCEA. This decision was based on the substantial and
    credible allegations of fraud contained in Mr. Dornan's Notice.
    These allegations were supported by independent investigations
    being conducted by the California Secretary of State and the
    Orange County District Attorney. As contemplated by the express
    language of the statute, the postponement of decision on Ms.
    Sanchez's Motion to Dismiss triggered the beginning of
    discovery by Mr. Dornan.13
    ---------------------------------------------------------------------------
        \13\ 2 U.S.C. Sec. 383(d); Sec. 386.
    ---------------------------------------------------------------------------
        A careful review of the legislative history of the Act and
    a comparison of the Act with other federal law supports the
    decisions of the Task Force to permit discovery in this
    election contest.
        The House of Representatives passed the current FCEA in
    1969 by an overwhelming bipartisan vote--only 12 Members voted
    ``no.'' 14 That Act, and prior laws upon which it
    was based, dating back to 1851, specifically authorize parties
    in an election contest to conduct discovery using
    subpoenas.15 Subpoenas have long been used by
    parties in election contests for this purpose. Hence, the
    issuance of subpoenas pursuant to the FCEA is not an
    ``unprecedented'' step.
    ---------------------------------------------------------------------------
        \14\ Congressional Record, October 20, 1969; 30513-14.
        \15\ See Appendix H.
    ---------------------------------------------------------------------------
        The manner in which Mr. Dornan proceeded, in obtaining
    subpoenas from the federal district court and serving them upon
    the respondents, is precisely the process contemplated by the
    Act. The legislative history of the Act reveals that it was
    enacted to revise the ``cumbersome, antiquated procedures'' of
    the 1851 Act, its predecessor. The drafters of the Act intended
    that its discovery provisions mirror more closely the Federal
    Rules of Civil Procedure. One of the inadequacies of the 1851
    Act cited by Congressman Kyl was that it gave ``no clear
    authority for [a] contestant to take testimony if contestee
    fails to answer the notice of contest.'' Congressman Ryan
    opined that enactment of the FCEA would grant a contestant,
    acting in accordance with the provisions of the Act, the
    ``right'' to initiate an election contest with the power of
    subpoena.
        Other laws contemplate the same type of delegation. For
    instance, a law dealing with Congressional Task Force procedure
    and investigations provides that a private party may request a
    master in chancery, a judicial officer, to issue subpoenas for
    any private claim against the United States that is pending
    before a Congressional Task Force.16
    ---------------------------------------------------------------------------
        \16\ 2 U.S.C. Sec. 190(l).
    ---------------------------------------------------------------------------
        The Task Force record shows that the Democratic Minority
    opposed holding a ``hearing on the merits'' because the hearing
    would trigger the subpoena power authorized in the Act. The
    Minority objected to the scheduling of a hearing on the merits,
    even though Ms. Sanchez requested the hearing in Orange County.
    The Minority sought immediate dismissal without any
    investigation or hearing. This position comports with the
    traditional Democratic reluctance to investigate vote fraud.
    Since the passage of the Act in 1969, the House, under
    Democratic control, did not permit a single contestant to
    conduct discovery as contemplated in the Act.17
    ---------------------------------------------------------------------------
        \17\ This position was maintained even in the face of egregious
    vote fraud such as in Wilson v. Leach, H. Rep. 96-784, 96th Cong., 2nd
    Sess. (1980) (margin of 266 votes: 22 persons plead guilty to vote
    buying; 58 persons admitted that they were paid to vote; the Contestant
    produced ledger allegedly recording over 400 persons who sold their
    vote in single precinct; press reported endemic system of massive vote
    buying; the Contestee indicted for and acquitted of vote fraud--Motion
    to Dismiss contest approved by the Democratic Majority of the Committee
    on House Administration without any discovery or investigation.)
    ---------------------------------------------------------------------------
        A contested election Task Force should not allow a losing
    candidate to proceed to discovery in a contest based on general
    or disproven claims of fraud or irregularities. A contestant
    must provide specific, credible allegations which would 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 meaningful discovery while
    recognizing that mere notice pleading is insufficient in the
    face of credible contrary evidence.
        For the Democratic Minority to question the value of
    discovery in this case reveals their insensitivity to the
    threat of voter fraud. The criminal investigations of voter
    fraud by the California Secretary of State and the District
    Attorney of Orange County revealed that hundreds of individuals
    registered to vote before becoming U.S. citizens and cast
    illegal ballots. Proper subpoenas were necessary to help
    determine whether these votes were an isolated instance of
    fraud or part of a larger pattern. Unfortunately, the Task
    Force investigation indicates a larger pattern of non-citizens
    on the registration roles, a pattern the Minority's immediate
    dismissal would have left undiscovered.
        While the Democrats controlled Congress for forty years,
    there was a consistent denial of access to facts, which
    frustrated efforts to uncover possible vote fraud or
    malfeasance in our electoral system. Citizens of the United
    States have the right to be assured that their representatives
    have been elected by lawful votes. The discovery procedures
    provided for in the FCEA are similar in form to those provided
    to civil litigants in virtually all courts across our nation.
        The standard for judging a Motion to Dismiss that 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. This Task Force also
    recognized however, that the proof of election irregularities
    or fraud may not be obtainable by a contestant who has not had
    access to discovery. 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 18 should not be penalized.
    ---------------------------------------------------------------------------
        \18\ 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. In some cases, this problem might be due to the
    unavailability of the materials, or their sheer volume.
    ---------------------------------------------------------------------------
        Republicans have consistently rejected the Democratic
    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 19 before any discovery can begin or before
    a hearing on the merits can be set. The Democratic standard
    incorrectly elevated the Motion to Dismiss stage to an
    insurmountable barrier to all election contestants.
    ---------------------------------------------------------------------------
        \19\ See, e.g., 11 Rep. 244, 95th Cong., 1st Sess. Young v. Mikua
    (1977). This standard was advocated by Democrats filing motions to
    dismiss in 1995. See Contestee (Roses') 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).
    ---------------------------------------------------------------------------
        As stated previously 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 Task Force
    could order remedies, including proportional deduction of
    improper ballots,20 exclusion of contaminated
    precincts,21 or ordering a new
    election.22 The appropriate remedy depends upon two
    tests whether the allegations are proven and how crucial they
    were to the apparent victory.
    ---------------------------------------------------------------------------
        \20\ 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. 564
    (H. Rep. 1599, 82nd Cong., 2nd Sess., Macy v. Greenwood (1952), Ch 9
    App. Deschler's Precedents Sec. 54 at 828 (H. Rep. 1450, 69th Cong.,
    1st Sess. Bailey v. Walters (1926), Sec. 32 (H. Rep. 224, 68th Cong.,
    1st Sess. Chandler v. Bloom (1924)), Sec. 36 at 770-71 (H. Rep. 1101,
    67th Cong., 4th Sess. Paul v. Harrison (1922)), Sec. 27 at 744-45 (H.
    Rep. 1325, 66th Cong. 3d Sess, Farr v. McLane (1921)), Sec. 14 at 681
    (H. Reo. 839, 65th Cong., 3rd Sess. Wickersham v. Salzere (1919)), at
    Sec. 26 at 74 (H. Rep. 1319, 66th Cong., 1st Sess., Wickersham c.
    Salzer and Grugsby (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)).
        \21\ See, e.g. Ch. 9 App. Deschler's Precedents Sec. 74 at 877 (H.
    Rep. 1901 Part 2, 71st Cong., 2d Sess., Hill v. Palmosano (1930)),
    Sec. 54 at 820 (H. Rep. 1450, 69th Cong., 1st Sess. Bailey v. Walters
    (1926)), Sec. 42 at 784 (H. Rep. 224, 68th Cong., 1st Sess., Chandler
    v. Bloom (1924)); id. Sec. 3.6 at 770 (H. Reo. 1101, 67th Cong., 4th
    Sess. Paul v. Harrison (1922)), Sec. 2.7 at 744 (H. Rep. 1325, 66th
    Cong., 3d Sess., Farr v. McLasne (1921)); Sec. 2.4 at 717 (H. Rep.
    9612, 66th Cong., 2d Sess., Safts or Major (1920)), at Sec. 21 at 696
    (H. Reo. 375, 66th Cong., 1st Sess., Tague v. Fitzgerald (1919) (Citing
    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.)), H. Rep. 626, 92nd Cong, 1st Sess. Tunno v. Veysey (1971)
    at 4 (internal citation deleted).
        \22\ An entirely new election is proper if the contamination of
    votes makes the winner of the election 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 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. Reo. 2255, 83rd Cong.,
    3d Sess. Ray v. Jenks (1938)), Sec. 4714 at 495 (H. Rep. 334 73rd
    Cong., 2nd Sess. Kemp, Sanders Investigation (1934)).
    ---------------------------------------------------------------------------
        The language regarding 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. In the past, 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 normal civil
    litigation, therefore, the House utilized a standard blending
    of Rules 12(b)(6) and 56 of the Federal Rules of Civil
    Procedure.
        In fact, the FCEA rule allowing a Motion to Dismiss itself
    was designed and modeled on rule 12(b)(6) of the Federal Rules
    of Civil Procedure which govern actions in federal court. This
    rule allows for dismissal of a case before discovery where the
    plaintiff cannot sustain a legal claim even if every factual
    allegation and inference, contended by the plaintiff, 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 meant 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.
        The FCEA'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,
    Democratic 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.23
    ---------------------------------------------------------------------------
        \23\ 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.24

        \24\ H. Rep. 569, Federal Contested Election Act, 91st Cong., 1st
    Sess., at 3 (1969) 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).
    ---------------------------------------------------------------------------
        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, a
    Motion to Dismiss must be rejected or postponed to a Hearing on
    the Merits. 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 viewing the
    evidence at issue in a Rule 56 motion for summary
    judgment.25 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.
    ---------------------------------------------------------------------------
        \25\ 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, recognition that evidence may be beyond the grasp of a
    contestant is even more appropriate.
    ---------------------------------------------------------------------------
        In comparison, when evidence was reviewed under the
    standard used by Democrats for the FCEA Motion to Dismiss, such
    consideration amounted to a Trial on the Merits without any
    fact finding. Using this summary judgment standard when the
    contestant had not been allowed discovery 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.26
    ---------------------------------------------------------------------------
        \26\ 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.'' 27 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.'' 28 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 countings were plead properly.29
    ---------------------------------------------------------------------------
        \27\ H. Rep., 244, 95th Cong., 1st Sess., at 9 (1977) (minority
    views of Rep. Dave Stockman).
        \28\ H. Rep. 784, 96th Cong., 2d Sess., at 5 (minority views).
        \29\ 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 Democratic
    standard which shifted the burden of proof to the contestant,
    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.30
    ---------------------------------------------------------------------------
        \30\ 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.31
    ---------------------------------------------------------------------------
        \31\ 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. 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 Democratic position that Saunders' contest should
    be dismissed because she failed to provide documentary proof of
    her allegations.32
    ---------------------------------------------------------------------------
        \32\ 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, Republicans 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.33
    ---------------------------------------------------------------------------
        \33\ H. Rep. 245, 95th Cong., 1st Sess., at 4 (supplemental views).

        In conclusion, the standard for setting a hearing on the
    merits thus permitting discovery under the FCEA 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 only by legal votes.

              Discovery Under the Federal Contested Elections Act

        While the discovery provisions of the FCEA are sound in
    theory, in practice the provisions created an unworkable
    structure. Due to obstructionist behavior on the part of
    various persons and entities subpoenaed, a failure on the part
    of the Department of Justice to enforce the subpoenas as
    contemplated under the FCEA,34 and the inability of
    the Contestant to subpoena the INS, discovery by the Contestant
    was generally ineffective in providing useful information to
    this Task Force.
    ---------------------------------------------------------------------------
        \34\ See Appendix G
    ---------------------------------------------------------------------------
        On February 13, 1997, Mr. Dornan issued over 50 subpoenas,
    signed by U.S. Magistrate Elgin Edwards in the U.S. District
    Court in Santa Ana, California. On February 28, 1997 U.S.
    Magistrate Edwards denied the Contestee's challenge to the
    validity of the subpoenas issued on February 13, 1997. On March
    9, 1997, U.S. District Court Judge Gary L. Taylor, Central
    District of California, recalled the subpoenas issued by the
    Magistrate because they were irregular on their face in several
    respects and thus not as authorized by the FCEA.35
    Judge Taylor ordered that any future FCEA subpoenas would be
    issued by the District Court.36
    ---------------------------------------------------------------------------
        \35\ In the Matter of the Contested Election of Loretta Sanchez to
    the House of Representatives of the United States Congress; Robert K.
    Dornan, Contestant, vs. Loretta Sanchez, Contestee, 955 F. Supp. 1210,
    1212 (1997).
        \36\ Id. at 1212.
    ---------------------------------------------------------------------------
        On March 10, 1997, Mr. Dornan's period for discovery
    officially began under the FCEA. He was granted subpoena power
    as part of his discovery process. On March 18, 1997, Mr. Dornan
    issued 24 subpoenas signed by Judge Gary L. Taylor. On March
    28, 1997, Mr. Dornan issued seven more subpoenas, including one
    to Ms. Sanchez. Finally, on May 20, 1997 the Contestant issued
    13 additional subpoenas signed by Judge Gary L. Taylor.
        On April 9, 1997, Mr. Dornan's discovery period ended and
    Ms. Sanchez's period began. On April 16, 1997, the Committee
    met to consider motions to quash or modify subpoenas filed by
    entities to which Mr. Dornan issued subpoenas.37 The
    Committee held in abeyance 16 subpoenas pending a further
    showing of relevance by Mr. Dornan.38 The Committee
    also voted to issue letters to five entities stating that the
    documents subpoenaed must be produced within 15
    days.39 The Committee also approved the text of
    three protective orders that specify the terms of production
    and custody of documents produced under subpoena.40
    These strict protective orders were designed to protect the
    legitimate privacy interests of those organizations and
    individuals subpoenaed by the Contestant. On May 9, 1997 the
    discovery period ended for the Contestee. Throughout her time
    for discovery, the Contestee issued no subpoenas.
    ---------------------------------------------------------------------------
        \37\ See Appendix K.
        \38\ These entities were the U.S. District Court Naturalization
    Division, Immigration and Naturalization Service, Laborers Union 652,
    Carpenters Union 803, Carpenters Union 2361, the Guttenberg Group,
    Citizen's Forum, Lou Correa for State Assembly, Active Citizenship
    Campaign, Communication Workers Local 9510, Hermandad Mexicana Nacional
    Sales and Marketing, Rancho Santiago College Orange Campus, Centennial
    Education Center, Orange Adult Learning Center, and Garden Grove
    Center.
        \39\ These five entities were Catholic Charities, Dump Dornan
    Committee, Sanchez for Congress, Hermandad Mexicana Nacional, Hermandad
    Mexicana Nacional Legal Center.
        \40\ See Appendix K.
    ---------------------------------------------------------------------------
        On May 21, 1997 the Committee met to decide on outstanding
    motions to quash or modify subpoenas initiated by the
    Contestant.41 The Committee voted to hold two
    subpoenas in abeyance.42 The Committee denied
    motions to quash from Lou Correa for State Assembly, Dump
    Dornan, Guttenberg Group, Southwest Voter Registration Project,
    and One Stop Immigration and Education Center.
    ---------------------------------------------------------------------------
        \41\ The Committee voted to quash seven subpoenas. The quashed
    subpoenas were Southern California Edison, Southern California Gas,
    Garden Grove Water Department, Communications Workers of America, Labor
    Union Local 652, United States District Court, and the INS.
        \42\ The subpoenas were Carpenters Local 803/2361 and Rancho
    Santiago Community College.
    ---------------------------------------------------------------------------
        On September 24, 1997 the Committee met to vote on three CA
    46 issues. First the Committee voted on motions to quash or
    modify subpoenas issued by the Contestant. The Committee voted
    to quash subpoenas issued to Loretta Sanchez, Rancho Santiago
    College, Naturalization Assistance Service, Carpenters Local
    803/2361, and R. Scott Moxley.43 The Committee voted
    to modify and enforce subpoenas issued to Nativo Lopez, Michael
    Farber, and Active Citizenship Campaign.44 The
    Committee voted to pass a House Resolution urging the Office of
    the United States Attorney for the Central District of
    California to file criminal charges against Hermandad Mexicana
    Nacional for failure to comply with a valid subpoena under the
    Federal Contested Elections Act. Finally, the Committee voted
    to authorize the issuance of interrogatories. On October 1,
    1997 the Committee issued interrogatories to Robert K. Dornan,
    Michael Farber, Loretta Sanchez, Wylie Aitken, John Shallman,
    Benny Hernandez, Nativo Lopez, CA Secretary of State Bill
    Jones, and Orange County District Attorney Michael
    Capizzi.45
    ---------------------------------------------------------------------------
        \43\ The Contestant had applied for and served the subpoena to Mr.
    Moxley outside of the 30 day discovery period. A Contestant or
    Contestee must initiate their discovery with respect to a particular
    party within the initial periods prescribed by the FCEA.
        \44\ In contrast to the subpoena directed to Mr. Moxley, the
    subpoenas to Mr. Farber, Mr. Lopez and Active Citizenship Campaign were
    applied for within the initial discovery window and a good-faith effort
    at service was attempted although not perfected until after the passing
    of the initial discovery period.
        \45\ See Appendix D.
    ---------------------------------------------------------------------------
        Because of the refusal of numerous witnesses and entities
    to comply with subpoenas issued by Mr. Dornan and the refusal
    of the INS to comply with numerous requests from the Committee
    and California election officials to provide citizenship data
    on individuals, the Committee was required to issue its own
    subpoenas and undertake a larger role in the
    investigation.46 On May 14, 1997 the Committee
    issued two subpoenas to the INS. 47 The first
    subpoena requested that the INS perform a match of documented
    aliens in their databases with the list of individuals who
    registered to vote in Orange County prior to the November 1996
    election. The second subpoena requested that the INS provide to
    the Committee copies of relevant INS databases.48
    ---------------------------------------------------------------------------
        \46\ See Appendix I.
        \47\ See Appendix E.
        \48\ The INS eventually complied with the Committee's subpoena,
    providing numerous databases, which were compared to Orange County
    voter registration records.
    ---------------------------------------------------------------------------
        The refusal of many witnesses to comply also caused Mr.
    Dornan to seek relief by way of a criminal complaint, as is
    contemplated by the FCEA.49 On May 19, 1997 the
    Contestant filed a criminal complaint against Hermandad
    Mexicana Nacional with the U.S. Attorney in Los Angeles. The
    criminal complaint requested that the U.S. attorney prosecute
    Hermandad Mexicana Nacional for failure to comply with FCEA
    subpoenas. On June 23, 1997 the Committee wrote a letter to the
    U.S. Attorney's office requesting that they act on a criminal
    complaint filed by the Contestant. On June 30, 1997 the
    Committee again wrote to the Deputy Attorney General of the
    United States to request that the Department of Justice advise
    the Committee of the status of the criminal complaint filed by
    the Contestant. On September 30, 1997 the House of
    Representatives passed House Resolution 244, Demanding that the
    Office of the United States Attorney for the Central District
    of California file criminal charges against Hermandad Mexicana
    Nacional for failure to comply with a valid subpoena under the
    Federal Contested Elections Act.50 Despite the
    Committee's efforts, the Department of Justice refused to
    enforce the subpoenas.
    ---------------------------------------------------------------------------
        \49\ See Appendix G.
        \50\ See Appendix H.
    ---------------------------------------------------------------------------

                 The Investigation Conducted by the Task Force

        Throughout this election contest, the Task Force has sought
    to allow the Contestant and the Contestee to exercise the
    discovery process provided for in the Federal Contested
    Elections Act. However, the Contestee and third-parties, such
    as Hermandad Mexicana Nacional, have not only refused to comply
    with the provisions of the statute, but have also engaged in
    lengthy litigation challenging the Constitutionality of the
    statute. Although the Majority's position in this litigation
    has ultimately been vindicated,51 the delays and
    obstruction of the Contestee and third-parties forced the Task
    Force to pursue its own investigation of voting
    irregularities.52
    ---------------------------------------------------------------------------
        \51\ In the Matter of the Contested Election of Loretta Sanchez to
    the House of Representatives of the United States Congress; Robert K.
    Dornan, Contestant, v. Loretta Sanchez, Contestee, 978 F. Supp. 1315
    (1997). See Appendix I.
        \52\ See Appendix B.
    ---------------------------------------------------------------------------
        In addition, the credible allegation by the Contestant that
    aliens voted in the election created a conflict with the
    privacy rights of persons in the INS's databases. As the
    Department of Justice wrote in their motion to quash the
    Contestant's FCEA subpoena: ``Under the Privacy Act of 1974, 5
    U.S.C. Sec. 552a(b), as amended, no agency shall disclose any
    record which is contained in a system of records by any means
    of communication to any person except by the prior written
    consent of the individual to whom the records pertains, unless
    one of a series of exceptions applies.53 The Act
    applies to records maintained in a system of records by a
    federal agency that are retrieved by `the name or other
    identifying information' of the individual.54 An
    individual, for purposes of the act, is defined as `a citizen
    of the United States or an alien lawfully admitted for
    permanent residence.' 55 By specifically requesting
    `identifying information' the Contestant seeks the production
    of that which is specifically prohibited.'' 56
    ---------------------------------------------------------------------------
        \53\ 5 U.S.C. Sec. 522(b)(1-12).
        \54\ 5 U.S.C. Sec. 522a(a) & 522(f).
        \55\ 5 U.S.C. Sec. 522a(a)(2).
        \56\ Motion of the Immigration and Naturalization Service and the
    Custodian of Records, United States District Court for the Central
    District of California, To Quash Contestant's Subpoena. April 16, 1997.
    Page 3.
    ---------------------------------------------------------------------------
        The Justice Department's analysis of the Privacy Act is
    correct. Accordingly, the Committee quashed the Contestant's
    subpoena to the Immigration and Naturalization Service at the
    Committee Meeting of May 21, 1997.
        However, the Task Force could not ignore the credible
    allegations proffered by the Contestant. Therefore, the Task
    Force undertook its own investigation, utilizing data
    subpoenaed from the INS. The Privacy Act specifically exempts
    ``either House of Congress, or to the extent of matter within
    its jurisdiction 57 any Task Force or subcommittee
    thereof * * *.'' 58 Throughout this investigation
    the Task Force has been conscious of its responsibility to
    respect the privacy of every individual related to this
    investigation and has scrupulously guarded the information in
    its possession.59
    ---------------------------------------------------------------------------
        \57\ Committee on House Oversight jurisdiction is defined by House
    Rule X(1)(b).
        \58\ 5 U.S.C. Sec. 522(b)(9).
        \59\ The Contestee has not shared this commitment to privacy
    rights. In a letter dated November 11, 1997 the Contestee's attorneys
    attempted to compel the Orange County Registrar of Voters to publicly
    disclose, pursuant to the California Public Records Act, Cal. Govt.
    Code Sec. 6250 et seq, a preliminary list of potential matches. Such a
    disclosure would have irreparably violated the privacy of hundreds of
    innocent people. Fortunately, the Committee intervened to protect the
    privacy of the persons affected.
    ---------------------------------------------------------------------------
        After a careful comparison between the Orange County voter
    registration files and INS databases the Task Force was able to
    clearly and convincingly document that 624 persons had
    illegally registered and thus were not eligible to cast ballots
    in the November 1996 election.60 In addition, the
    Task Force discovered 196 instances where there is a
    circumstantial indication that a voter registered
    illegally.61 Further, the Orange County Registrar of
    voters voided 124 improper absentee ballots.62 In
    total, the Task Force found clear and convincing evidence that
    748 invalid votes were cast in this election.
    ---------------------------------------------------------------------------
        \60\ See Appendix C.
        \61\ See Appendix C.
        \62\ See Appendix C.
    ---------------------------------------------------------------------------
        The question of how many aliens are registered and voting
    in the Forty-sixth Congressional District has not been resolved
    by this Task Force investigation. The investigation of this
    contest has confirmed that there is a significant number of
    aliens who appear within the INS data bases and are on the
    voter registration rolls of Orange County. This fact leads
    logically to a serious question and a troubling hypothesis: if
    there is a significant number of ``documented aliens'', aliens
    in INS records, on the Orange County voter registration rolls,
    how many illegal or undocumented aliens may be registered to
    vote in Orange County? The Task Force can make no conclusion
    based on the materials before it as to the number of illegal
    aliens who may be on Orange County registration rolls. The Task
    Force does not have available to it clear and convincing
    evidence on the number of undocumented aliens who may be
    registered voters in Orange County.
        Only clear and convincing evidence can provide the basis to
    overcome the presumption of the legitimacy of the electoral
    process. Absent such evidence, the California certification of
    the election results in the 46th Congressional District must be
    confirmed by this House. However, the confirmation of this
    election result by the House is not an unequivocal validation
    of the voting process in Orange County.
        In conclusion, had the Task Force and Committee not acted
    to consider the merits of this contest, significant vote fraud
    and vote irregularities would have gone undetected. However,
    the number of ballots for which the Task Force and Committee
    has clear and convincing evidence that they were cast
    improperly by individuals not eligible to vote in the November
    1996 election is substantially less than the 979 vote margin in
    this election.
        For the foregoing reasons, the Committee concludes that
    this contest should be dismissed.
                             APPENDIX A: CHRONOLOGY

      Contested Election in the 46th Congressional District of California

                                   CHRONOLOGY

    November, 1996
        5th--Federal, state and local elections were held
    nationwide. In the 46th Congressional District of California
    incumbent Robert K. Dornan (R) was challenged by Loretta
    Sanchez (D).
        6th--Bob Dornan was ahead by 233 votes but 12,000 absentee
    and provisional ballots were still uncounted.
        9th--The Committee on House Oversight (hereafter ``the
    Committee'') sent observers to the Orange County Registrar of
    Voters to monitor the counting of the outstanding votes.
        13th--The Associated Press called Loretta Sanchez the
    winner when she moved ahead by 929 votes with 3,000 ballots
    left outstanding. The following day Robert Dornan called for a
    recount of all votes.
        22nd--All votes were counted once and the Registrar of
    Voters declared Sanchez the winner by 984 votes.
    December, 1996
        4th--The California Secretary of State announced that his
    office was opening an investigation of possible voter fraud in
    the 46th Congressional District. The Orange County District
    Attorney also announced that he would similarly investigate the
    results of the election based on allegations of voter fraud.
        9th--The Committee sent additional observers to Orange
    County to observe the recount procedures. The recount resulted
    in a five vote pick-up for Robert Dornan, leaving the final
    margin of defeat at 979 votes.
        26th--Robert Dornan (hereafter ``the Contestant'') filed a
    Notice of Contest with the Committee announcing his intention
    to contest the results of the election.
    January, 1997
        7th--Loretta Sanchez (hereafter ``the Contestee'') was
    sworn in as a Member of the 105th Congress.
        8th--The Committee met and formed the Task Force for the
    Contested Election in the 46th Congressional District of
    California (hereafter ``the Task Force''). Two of the three
    Task Force members were appointed. The Honorable Vernon Ehlers
    (R-MI, Chairman), and the Honorable Bob Ney (R-OH) were
    appointed by Committee Chairman Bill Thomas. At this time the
    Ranking Minority Member on the Committee did not have a
    recommendation to fill the third (Democratic) position on the
    Task Force.
        14th--The Orange County District Attorney and the CA
    Secretary of State conducted a raid, under search warrant, of
    Hermandad Mexicana Nacional, a Latino community service
    organization. The Contestant alleged to both the District
    Attorney and the Secretary of State that Hermandad Mexicana
    Nacional was at the center of an effort to register and
    encourage non-citizens to vote in the 1996 elections. The Los
    Angeles District Office of the Immigration and Naturalization
    Service agreed to assist the California Secretary of State in
    identifying non-citizens who may have voted.
        31st--The Contestee filed a Motion to Dismiss Notice of
    Election Contest or, in the Alternative, For a More Definite
    Statement.
    February, 1997
        10th--The Contestant submitted an Opposition to Motion to
    Dismiss or, in the Alternative, Response to Motion for a More
    Definite Statement detailing his allegations of voter fraud.
        11th--The Committee met and appointed the third member to
    the Task Force, the Honorable Steny Hoyer (D-MD).
        12th--The Task Force received a letter from the Contestee
    requesting that the Task Force ``withhold consideration of my
    motion'' until the Task Force conducts a field hearing in
    Orange County, CA.
        13th--The Contestant issued over 50 subpoenas, signed by
    U.S. Magistrate Elgin Edwards in the U.S. District Court in
    Santa Ana.
        26th--The Task Force met and voted to postpone the
    disposition of the Contestee's Motion to Dismiss until after a
    Hearing on the Merits. At the meeting, Chairman Ehlers
    acknowledged the request from the Contestee regarding a field
    hearing and recommended that the request be granted.
        28th--U.S. Magistrate Edwards ruled that subpoenas issued
    by the Contestant are legitimate.
    March 1997
        9th--U.S. District Court Judge Gary L. Taylor, Central
    District of California, revoked some subpoenas issued by the
    Contestant citing that the subpoenas may be issued for
    depositions but not documents exclusively.
        10th--The Contestant's period for discovery officially
    began under the Federal Contested Elections Act. He was granted
    subpoena power as part of his discovery process.
        12th--The Contestee filed a Renewed Motion to Dismiss
    Notice of Election Contest with the Committee.
        14th--California Secretary of State Bill Jones requested
    that the INS analyze the entire Orange County voter
    registration list.
        17th--Richard Rogers, INS Los Angeles District Director
    agreed to analyze the information requested by the Secretary of
    State.
        18th--The Contestant issued 24 subpoenas signed by Judge
    Gary L. Taylor.
        28th--The Contestant issued seven more subpoenas, including
    one to the Contestee.
    April 1997
        9th--The Contestant's discovery period ended and the
    Contestee's began.
        9th--The California Secretary of State announced that an
    INS analysis of 1,100 persons enrolled in Hermandad citizenship
    classes had discovered 490 documented non-citizens who
    registered to vote in CA 46. Of these, 303 actually voted
    illegally in CA 46, and 69 individuals had no record in INS
    files.
        10th--The Contestant filed a Motion to Enlarge Time to Take
    Testimony and for Production of Documents.
        15th--The Contestant filed a Motion to Compel Compliance
    With Subpoenas Regarding Depositions to Release Documents
    Submitted Under Seal.
        16th--The full Committee met to consider motions to quash
    or modify subpoenas filed by entities to which theContestant
    issued subpoenas. The Committee held in abeyance 16 subpoenas pending a
    further showing of relevance by the Contestant. These entities were the
    U.S. District Court Naturalization Division, Immigration and
    Naturalization Service, Laborers Union 652, Carpenters Union 803,
    Carpenters Union 2361, the Guttenberg Group, Citizen's Forum, Lou
    Correa for State Assembly, Active Citizenship Campaign, Communication
    Workers Local 9510, Hermandad Mexicana Nacional Sales and Marketing,
    Rancho Santiago College Orange Campus, Centennial Education Center,
    Orange Adult Learning Center, and Garden Grove Center. The Committee
    also voted to issue letters to five entities stating that the documents
    subpoenaed must be produced within 15 days. These five entities were
    Catholic Charities, Dump Dornan Committee, Sanchez for Congress,
    Hermandad Mexicana Nacional, Hermandad Mexicana Nacional Legal Center.
    The Committee also approved the text of three protective orders that
    specify the terms of production and custody of documents produced under
    subpoena.
        18th--The Committee issued letters to all parties whose
    motions were resolved at the April 16, 1997 Committee meeting.
        17th--The Contestant submitted Field Hearing Testimony in
    Support of Notice of Contest to the Committee.
        19th--The Task Force held a field hearing in Santa Ana, CA.
    At the hearing, the Task Force heard testimony from the CA
    Secretary of State, the Orange County District Attorney, the
    Orange County Registrar of Voters, and the INS Los Angeles
    District Director. The Contestant and the Contestee also
    testified and called witnesses to testify before the Task
    Force.
        24th--The Committee sent a request to the INS headquarters
    in Washington, D.C. asking that they perform a comparison of
    the Orange County voter list and several INS databases.
        28th--The Contestant filed an Application for Extension of
    Time within Which to Respond to the Committee's Request for
    Further Information.
        29th--The Orange County Registrar of Voters notified the
    Committee that she had identified 98 improper absentee ballots.
        30th--The Contestee submitted Closing Field Hearing
    Testimony in Support of Motion to Dismiss to the Committee.

    May 1997

        1st--Hermandad Mexicana Nacional and the Committee for
    Loretta Sanchez failed to produce documents as required by the
    Contestant's subpoenas that were upheld by the Committee.
        1st--The Contestant submitted Response to the Committee on
    House Oversight's Request For Further Information Regarding
    Subpoenas.
        1st--The INS writes to CHO requesting two additional weeks
    to determine the extent to which the INS will be able to comply
    with the Committee's April 24, 1997 request.
        2nd--The Contestant filed a Response to the Committee's
    Request for Further Information Regarding Subpoenas.
        5th--Chairman Bill Thomas held a press conference to
    announce that the INS had failed to cooperate with numerous
    requests for assistance in reviewing the citizenship status of
    CA 46 voters.
        9th--The discovery period ended for the Contestee.
    Throughout her time for discovery, the Contestee issued no
    subpoenas.
        14th--The Committee issued two subpoenas to the INS. The
    first subpoena requested that the INS perform a match of
    documented aliens in their databases with the list of
    individuals who registered to vote in Orange County prior to
    the November 1996 election. The second subpoena requested that
    the INS provide to the Committee copies of relevant INS
    databases.
        19th--The Contestant filed a criminal complaint against
    Hermandad Mexicana Nacional with the U.S. Attorney in Los
    Angeles. The criminal complaint requested that the U.S.
    attorney prosecute Hermandad Mexicana Nacional for failure to
    comply with FCEA subpoenas.
        20th--The Contestant issued 13 additional subpoenas signed
    by judge Gary L. Taylor.
        21st--The Committee received the results of the matches of
    last name and date-of-birth between INS records and the Orange
    County voter registration list. The match identified over
    500,000 individuals registered in Orange County and
    approximately 136,000 individuals in the 46th Congressional
    District. This constituted partial compliance with the
    Committee's subpoena.
        21st--The Committee met to decide on outstanding motions to
    quash or modify subpoenas initiated by the Contestant. The
    Committee voted to quash seven subpoenas. The quashed subpoenas
    were Southern California Edison, Southern California Gas,
    Garden Grove Water Department, Communications Workers of
    America, Labor Union Local 652, United States District court,
    and the INS. The Committee voted to hold two subpoenas in
    abeyance. The subpoenas were Carpenters Local 803/2361 and
    Rancho Santiago Community College. The Committee denied motions
    to quash from Lou Correa for State Assembly, Dump Dornan,
    Guttenburg Group, Southwest Voter Registration Project, and One
    Stop Immigration and Education Center. The Committee set a
    production deadline of June 5, 1997.
        22nd--The Committee issued letters to all parties whose
    motions were resolved at the May 21, 1997 Committee meeting.
        29th--The INS informed the Committee that 19,000
    individuals in INS databases matched the first name, last name,
    and date-of-birth of individuals registered to vote in CA 46.
    Of those 19,000 approximately 4,023 were registered to vote in
    the 46th Congressional District.

    June 1997

        3rd--Committee staff met with INS staff to discuss
    compliance with Congressional subpoenas and future cooperation
    on projects such as paper file reviews.
        5th--Lou Correa for State Assembly, Dump Dornan, Guttenburg
    Group, Southwest Voter Registration Project, and One Stop
    Immigration and Education Center failed to produce subpoenaed
    documents.
        9th--The INS delivered five additional data tapes
    containing a total of 19,554 names matching the first name,
    last name, and date of birth as individuals on the Orange
    County voter registration tape.
        12th--Committee Chairman Bill Thomas and Task Force
    Chairman Vernon Ehlers wrote to Ranking Minority Member Sam
    Gejdenson and Task Force Member Steny Hoyer to explain the
    timeline for Contestant and Contestee discovery.
        13th--The INS wrote to the Committee to explain that a list
    of 4,023 names had been forwarded to its Los Angeles District
    Office and that they had began to gather the physical alien
    files in order to complete the data sheets requested by the
    Committee.
        16th--The California Secretary of State issued a legal
    opinion stating that a person who has unlawfully registered to
    vote prior to becoming a U.S. citizen is not entitled to vote,
    even if that person is naturalized prior to the election.
        19th--The Orange County Registrar informed the Committee
    that the new number of invalid absentee votes is 124.
        23rd--The Committee wrote a letter to the U.S. Attorney's
    office requesting that they act on a criminal complaint filed
    by the Contestant.
        23rd--The Committee requested that the INS provide data
    sheets for an additional 1,349 individuals.
        25th--The Committee received the first installment of 3,875
    INS data worksheets detailing the immigration status of
    individuals registered to vote in CA 46. These worksheets
    contained information compiled by the INS including date of
    naturalization, date of birth, date of registration to vote,
    alien number, and voter affidavit number. The information
    contained on these worksheets was used by the Committee to
    verify the immigration status of registered voters and the
    legality of their votes. These worksheets were requested by
    Committee letters between June 25, 1997 and October 20, 1997.
    The requested worksheets arrived at the Committee periodically
    between June 25 and February 6, 1998. While most of the
    information requested by the Committee was produced between
    these dates, there remained some data sheets that were never
    produced.
        30th--The Committee again wrote to the Deputy Attorney
    General of the United States to request that the Department of
    Justice advise the Committee of the status of the criminal
    complaint filed by the Contestant.
        30th--The Orange County Registrar of Voters wrote to inform
    the Committee that a certain group of individuals had
    registered to vote on a date different than had been originally
    stated by the Registrar of Voters. These new, later dates would
    then make their registrations valid under California law.

    July 1997

        16th--The Contestant wrote to the U.S. Attorney to provide
    information regarding the District Court's rulings and the
    procedures employed by the Contestant to encourage subpoena
    enforcement.
        18th--The INS delivered an additional 260 data worksheets
    to the Committee. On July 23, 1997 the INS delivered an
    additional 85 data worksheets to the Committee.
        21st--Assistant U.S. Attorney Jonathon Shapiro wrote to the
    Contestant to inform him that the Office of the U.S. Attorney
    ``does not generally use criminal prosecution to enforce civil
    subpoenas.''
        25th--Assistant Attorney General Andrew Fois wrote to the
    Committee in response to repeated requests for information
    regarding the Contestant's criminal complaint against Hermandad
    Mexicana Nacional, to explain that the Central District ``does
    not generally use criminal prosecution to enforce civil
    subpoenas.''
        29th--The INS delivered an additional 314 data worksheets
    to the Committee.
        29th--The Ranking Minority Member Sam Gejdenson and Task
    Force Member Steny Hoyer wrote to the INS to make three
    requests for information.
        30th--The INS delivered three data tapes containing the
    results of a match analysis of three INS databases and the
    Orange County registered voter list.

    August 1997

        8th--The Committee wrote to the INS requesting that the INS
    review an additional 153 alien files recommended by the
    Committee.
        8th--The INS delivered an additional 253 data worksheets to
    the Committee.
        15th--The Committee wrote to the Orange County District
    Attorney to request copies of certain computer files seized
    from Hermanad Mexicana Nacional during a January raid on that
    organization.
        18th--The Committee wrote to the Orange County Superior
    Court Clerk to request a list of all individuals who claimed
    that they were not citizens when called for jury duty.
        19th--The Committee wrote to the INS requesting that the
    INS review additional alien files recommended by the Committee.
        19th--The INS delivered an additional 608 data worksheets
    to the Committee.
        21st--The Orange County District Attorney delivered certain
    computer files requested by the Committee that were seized from
    Hermanad Mexicana Nacional during a January raid.
        25th--The Committee wrote to the INS requesting that the
    INS review additional alien files recommended by the Committee.
        25th--The Ranking Minority Member Sam Gejdenson and Task
    Force Member Steny Hoyer wrote to Committee Chairman Bill
    Thomas requesting his assistance in transmitting their request
    for information to the INS.
        29th--The INS delivered an additional 340 data worksheets
    to the Committee.

    September 1997

        2nd--The Orange County Superior Court delivered the
    electronic list of all individuals who claimed that they were
    not citizens when called for jury duty, as requested by the
    Committee.
        3rd--The Committee wrote three letters to the INS
    requesting that the INS review additional alien files
    recommended by the Committee.
        4th--The Bipartisan Legal Advisory Group of the U.S. House
    of Representatives filed an amicus brief with the U.S. District
    Court, Central District of California, in support of the
    constitutionality of the discovery provisions of the Federal
    Contested Elections Act.
        5th--The Committee wrote to the INS requesting that the INS
    review additional alien files recommended by the Committee.
        8th--The Committee wrote to the INS requesting that the INS
    review additional alien files recommended by the Committee.
        9th--Committee Chairman Bill Thomas forwarded the Minority
    Member's request to the INS as requested in their August 25,
    1997 letter.
        11th--The Minority Counsel to the Committee requested
    copies of registration affidavits from the Orange County
    Registrar of Voters for approximately 200 individuals.
        12th--The INS responded to the Committee's request
    forwarded by Chairman Thomas in behalf of Minority Members
    Gejdenson and Hoyer including documents and information
    pertaining to the citizenship status of certain individuals.
        12th--The INS delivered an additional 418 data worksheets
    to the Committee.
        15th--The Committee wrote to the California Secretary of
    State, in his capacity as the chief election officer of the
    State of California, to request that he review and verify the
    results of the Committee's voter analysis.
        17th--The Orange County Registrar of Voters produced the
    minority requested registration affidavits.
        18th--The House of Representatives Office of the General
    Counsel issued a legal memorandum to Chairman Thomas on the
    subject of sharing information received by the Committee.
    Specifically, the memorandum stated that the Committee could
    share information received from the INS with a state government
    agency in the process of conducting an investigation.
        22nd--The INS delivered an additional 237 data worksheets
    to the Committee.
        23rd--The Committee wrote to the INS requesting that the
    INS review additional alien files recommended by the Committee.
        23rd--U.S. District Court Judge Gary Taylor held that the
    subpoena provisions of the Federal Contested Elections Act are
    constitutional.
        24th--The Committee met to vote on three CA 46 issues.
    First the Committee voted on motions to quash or modify
    subpoenas issued by the Contestant. The Committee voted to
    quash subpoenas issued to Loretta Sanchez, Rancho Santiago
    College, Naturalization Assistance Service, Carpenters Local
    803/2361, and R. Scott Moxley. The Committee voted to modify
    and enforce subpoenas issued to Nativo Lopez, Michael Farber,
    and Active Citizenship Campaign. The Committee voted to pass a
    House Resolution urging the Office of the United States
    Attorney for the Central District of California to file
    criminal charges against Hermandad Mexicana Nacional for
    failure to comply with a valid subpoena under the Federal
    Contested Elections Act. Finally, the Committee voted to issue
    interrogatories to Robert K. Dornan, Michael Farber, Loretta
    Sanchez, Wylie Aitken, John Shallman, Benny Hernandez, Nativo
    Lopez, CA Secretary of State Bill Jones, and Orange County
    District Attorney Michael Capizzi. The interrogatories were
    issued on September 25, 1997.
        25th--The Committee issued letters to all parties whose
    motions were resolved at the September 24, 1997 Committee
    meeting.
        25th--The California Secretary of State wrote to the
    Committee to explain that he would be completing the
    verification process requested by the Committee on September
    15, 1997.
        26th--The INS delivered an additional 37 data worksheets to
    the Committee.
        29th--Hermandad Mexicana Nacional filed a Petition For
    Permission to Appeal From an Order of the United States
    District Court for the Central District of California.
        30th--The House of Representatives passed House Resolution
    244, demanding that the Office of the United States Attorney
    for the Central District of California file criminal charges
    against Hermandad Mexicana Nacional for failure to comply with
    a valid subpoena under the Federal Contested Elections Act.
    There were 219 votes cast in the favor of the resolution and
    203 against it.

    October 1997

        1st-14th--Loretta Sanchez, Robert Dornan, Sanchez Campaign
    Chair Wylie Aitken, Sanchez Campaign Manager John Shallman and
    Sanchez Field Director Bennie Hernandez responded to Committee
    interrogatories. Orange County District Attorney Michael
    Capizzi and California Secretary of State Bill Jones answered
    interrogatories posed by minority members of the Committee.
    Nativo Lopez and Michael Farber refused to answer the questions
    posed by the Committee.
        2nd--The INS delivered an additional 324 data worksheets to
    the Committee.
        6th--The Contestant filed an Answer to the Petition of
    Hermandad Mexicana Nacional For Permission to Appeal From an
    Order of the United States District Court for the Central
    District of California.
        10th--The INS delivered an additional 214 data worksheets
    to the Committee. On October 14, 1997 the California Secretary
    of State wrote to the Committee to transmit federal elections
    reform proposals.
        16th--The Committee wrote to the Orange County Superior
    Court to request a list of persons who failed to respond to
    jury summons.
        17th--The INS delivered an additional 203 data worksheets
    to the Committee.
        20th--The Committee wrote to the INS requesting that the
    INS review additional alien files recommended by the Committee.
        22nd--The INS delivered an additional 230 data worksheets
    to the Committee.
        23rd--Mr. Gephardt introduced a privileged resolution that
    required the Committee to conclude its investigation. The
    resolution was voted down 222-204.
        24th--Ninth Circuit Court of Appeals denied Hermandad
    Mexicana Nacional's request to appeal Federal District Court
    Judge Taylor's ruling on the constitutionality of the FCEA
    discovery process.
        24th--The Task Force met and voted on two issues related to
    the contested election in CA 46. First, the Task Force voted to
    issue and enter into a ``Memorandum of Understanding'' between
    the Task Force and the California Secretary of State. The
    ``Memorandum of Understanding'' specified in detail the
    procedures by which the CA Secretary of State was to conduct
    citizenship status verification of individuals whom the
    Committee had identified as illegitimate. Second, the Task
    Force passed a resolution requesting that the Chairman of the
    Committee on House Oversight issue Committee subpoenas to
    Nativo Lopez, Hermandad Mexicana Nacional, and Michael Farber.
    This resolution related to information that those entities had
    which the Task Force felt may be of value to their
    investigation.
        27th--The Chairman of the Committee and the California
    Secretary of State signed the ``Memorandum of Understanding''.
        28th--The Committee released the lists of possible illegal
    voters to both the CA Secretary of State and the Los Angeles
    District Director of the INS as stipulated in the Memorandum of
    Understanding.
        28th--The following members each introduced privileged
    resolutions that required the Committee to conclude its
    investigation: Mr. Menendez (tabled), Mr. Becerra (tabled), Ms.
    Norton (tabled), Mr. Condit (tabled), Ms. Roybal-Allard
    (tabled), Ms. Hooley (tabled), Ms. Waters (tabled), and Mr.
    Dooley (tabled).
        29th--The following members each introduced privileged
    resolutions that required the Committee to conclude its
    investigation: Mr. Gephardt (vote to table passed 218-200).
        30th--The INS delivered an additional 148 data worksheets
    to the Committee.
        30th--The Orange County Superior Court delivered an
    electronic list of all individuals who failed to appear in
    response to jury summons issued by the Orange County Jury
    Commissioner for the period June 1, 1997 to October 29, 1997.
        30th--The following members each introduced privileged
    resolutions that required the Committee to conclude its
    investigation: Mr. Hefley (vote to table passed 212-198), Ms.
    Roybal-Allard (vote to table passed 216-200), Ms. Norton (vote
    to table passed 214-187), Mr. Condit (vote to table passed 212-
    190), Mr. Becerra (vote to table passed 217-193), Ms. Hooley
    (vote to table passed 212-197), Ms. Waters (vote to table
    passed 214-196), and Mr. Dooley (vote to table passed 208-192).
        31st--The Los Angeles District Director of the INS wrote to
    the Committee to explain that his office would not perform the
    verification process requested by the Committee on October 28,
    1997.
        31st--The following members each introduced privileged
    resolutions that required the Committee to conclude its
    investigation: Ms. Harman (tabled), Ms. McKinney (tabled), Ms.
    McCarthy (tabled), Ms. DeLauro (tabled), Ms. Furse (tabled),
    Mrs. Mink (tabled), Mrs. Maloney (tabled), Ms. Slaughter
    (tabled), Ms. DeLauro (tabled), Ms. Velazquez (tabled), Ms.
    Jackson-Lee (tabled), Ms. Danner (tabled), Ms. Carson (tabled),
    Ms. Lofgren (tabled), Ms. Woolsey (tabled), Ms. Eddie Bernice
    Johnson (tabled), Mrs. Kennelly (tabled), Ms. Kilpatrick
    (tabled), Mrs. Thurman (tabled), Ms. Stabenow (tabled), Ms.
    Hooley (tabled), Mrs. Meek (tabled), and Ms. Roybal-Allard
    (tabled).

    November 1997

        4th--The following members each introduced privileged
    resolutions that required the Committee to conclude its
    investigation: Mrs. Lowey (tabled), Mrs. Clayton (tabled), Ms.
    Brown (tabled), Ms. Kaptur (tabled), Mrs. McCarthy (tabled),
    Ms. Millender-McDonald (tabled), and Ms. Eddie Bernice Johnson
    (tabled).
        5th--The following members each introduced privileged
    resolutions that required the Committee to conclude its
    investigation: Mr. Becerra (tabled), Ms. Velazquez (tabled),
    Mr. Menendez (tabled), Mr. Martinez (tabled), Mr. Ortiz
    (tabled), Mr. Serrano (tabled), Mr. Gutierrez (tabled), Mr.
    Underwood (tabled), Mr. Reyes (tabled), Mr. Torres (tabled),
    Ms. Roybal-Allard (tabled), Mr. Hinojosa (tabled), Mr. Romero-
    Barcelo (tabled), Mr. Rodriguez (tabled), and Ms. Furse (voted
    down 217-194).
        1st-14th--The Committee sent representatives to the Orange
    County Registrar of Voters to make copies of voter registration
    affidavits for over 4,000 individuals. This process took
    approximately two weeks to complete.
        3rd--The Committee wrote to the INS to request copies of
    signatures for approximately 1,200 individuals. On the same
    day, the Committee also requested birthplace information for
    the same individuals.
        12th--The Committee issued subpoenas to Nativo Lopez,
    Hermandad Mexicana Nacional and Michael Farber. The subpoenas
    requested various materials related to voter registration in
    the 1996 election. The subpoenas had a return date of December
    1 1997.
        14th--The INS delivered an additional 121 data worksheets
    to the Committee.
        21st--Nativo Lopez, Hermandad Mexicana Nacional and Michael
    Farber complied with the Congressional subpoenas by producing
    requested documents.
        21st--The INS delivered an additional 124 data worksheets
    to the Committee.

    December, 1997

        1st-31st--Throughout the month of December, the Committee
    spent considerable time comparing the signatures of individuals
    identified as ineligible voters by the Committee and
    individuals identified in INS databases. This was accomplished
    by comparing the signatures on the registration affidavits
    acquired from the Orange County Registrar of Voters and the
    signatures on naturalization applications acquired from the
    INS. The Committee also compared birthplace information for the
    same individuals.
        1st--The Committee wrote to the Contestant to confirm that
    all filings had been completed and that the Contestant did not
    have any further submissions to the Committee.
        1st--The INS delivered an additional 97 data worksheets to
    the Committee.
        2nd--The INS delivered a list of birthplace information for
    individuals identified in a November 3, 1997 Committee request.
        2nd--The contestant filed a Response to Appellant's Showing
    of Good Cause Why Its Appeal Should Not Be Dismissed.
        8th--The Contestant wrote to the Committee to confirm that
    he had completed his submissions to the Committee.
        12th--The United States Court of Appeals for the Ninth
    Circuit dismissed the Contestee's appeal of Judge Taylor's
    September 23, 1997 decision as moot.
        12th--The Committee requested that the INS produce
    additional photocopies of signatures.
        15th--The INS delivered an additional 116 data worksheets
    to the Committee.
        16th--The Committee wrote to the Contestee to inform her
    that the Contestant had completed his submissions to the
    Committee and that she had 30 days to submit a closing brief.
        16th--The INS delivered an additional 234 signature sheets
    to the Committee.
        17th--The INS delivered a list of birthplace information
    for 722 individuals.
        19th--The INS delivered an additional 181 data worksheets
    to the Committee.
        29th--The INS delivered an additional 569 signature sheets
    to the Committee.

    January 1998

        7th--The INS delivered an additional 655 signature sheets
    to the Committee.
        13th--The INS delivered an additional 121 data worksheets
    to the Committee.
        16th--Hermandad Mexicana Nacional filed a Notice of Motion
    For Return of Items Seized Pursuant to Search Warrant with the
    Superior Court of the State of California for the County of
    Orange.
        18th--Mr. Gephardt introduced a privileged resolution
    calling for the dismissal of the contested election in CA 46.
    The resolution was tabled by a vote of 214-189.

    February 1998

        4th--The Task Force for the Contested Election in the 46th
    Congressional District of California met and voted to dismiss
    the contested election.
        4th--The Committee met and voted 8-1 to dismiss the
    contested election.
        6th--The INS delivered an additional 378 signature sheets
    to the Committee.
        12th--The House of Representatives considered the motion to
    dismiss the contested election in California's 46th
    Congressional District.
                  APPENDIX B: INVESTIGATION BY THE TASK FORCE

                 the investigation conducted by the task force

        In the absence of a countervailing constitutional privilege
    or a self-imposed statutory restriction upon its authority,
    Congress and its committees have virtually plenary power to
    compel information needed to discharge its legislative function
    from executive agencies, private persons, and organizations
    and, within certain constraints, the information so obtained
    may be made public.
        Although there is no express provision of the Constitution
    which specifically authorizes Congress to conduct
    investigations and take testimony for the purposes of
    performing its legitimate functions, numerous decisions of the
    Supreme Court have firmly established that the investigatory
    power of Congress is so essential to the legislative function
    as to be implicit in the general vesting of legitimate power in
    Congress.63 Thus, in Eastland v. United States
    Servicemen Fund the Court explained that ``the scope of its
    power of inquiry * * * is as penetrating and far-reaching as
    the potential power to enact and appropriate under the
    Constitution.'' 64 In Watkins v. United States the
    Court further described the breadth of power of inquiry: ``The
    power of the Congress to conduct investigations is inherent in
    the legislative process. That power is broad. It encompasses
    inquiries concerning the administration of existing laws as
    well as proposed or possibly needed statutes.'' 65
    ---------------------------------------------------------------------------
        \63\ E.g., McGrain v. Daugherty, 272 U.S. 135 (1927); Watkins v.
    United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360
    U.S. 109 (1950); Eastland v. United States Servicemen Fund, 421 U.S.
    491 (1975); Nixon v. Administrator of General Services, 433 U.S. 425
    (1977); see also, United States v. A.T.T., 551 F.2d 384 (D.C. Cir.
    1976) and F.2d 1212 (D.C. Cir. 1977).
        \64\ 421 U.S. at 504, n. 15 (quoting Barenblatt, supra, 360 U.S. at
    111).
        \65\ 354 U.S. at 187.
    ---------------------------------------------------------------------------

                               the subpoena power

        The power of inquiry, with the accompanying process to
    enforce it, has been deemed ``an essential and appropriate
    auxiliary to the legislative function.'' A properly authorized
    subpoena issued by a committee or subcommittee has the same
    force or effect as a subpoena issued by the parent House
    itself.66 To validly issue a subpoena, individual
    committees or subcommittees must be delegated this authority.
    Both Senate 67 and House 68 rules
    presently empower all standing committees and subcommittees to
    require the attendance and testimony of witnesses and the
    production of documents. Special or select committees must be
    specifically delegated that authority by Senate or House
    resolution.69 The rules or practices of standing
    committees may restrict the issuance of subpoenas only to full
    committees or in certain instances allow issuance by a
    committee chairman alone, with or without the concurrence of
    the rankingminority member.
    ---------------------------------------------------------------------------
        \66\ McGrain v. Daugherty, supra, 273 U.S. at 158.
        \67\ Senate Rule XXVI(1).
        \68\ House Rule XI(2)(m)(1).
        \69\ See, e.g., S.Res.23, 100th Cong. (Iran-Contra); Sen. Res. 495,
    96th Cong. (Billy Carter/Libya).
    ---------------------------------------------------------------------------
        As previously indicated, committees may issue subpoenas in
    furtherance of an investigation within their subject matter
    jurisdiction as defined by Senate 70 and House
    71 rules which confer both legislative and oversight
    jurisdiction. Subpoenas may be issued on the basis of either
    source of authority.72
    ---------------------------------------------------------------------------
        \70\ Senate Rule XXV.
        \71\ House Rule X.
        \72\ The standard to be applied in determining whether the
    congressional investigating power has been properly asserted was
    articulated in Wilkinson v. United States: (1) the committee's
    investigation of the broad subject matter area must be authorized by
    Congress; (2) the investigation must be pursuant to ``a valid
    legislative purpose''; and (3) the specific inquiries must be pertinent
    to the broad subject matter areas which have been authorized by the
    Congress. 365 U.S. 399, 408-09 (1961).
    ---------------------------------------------------------------------------
        The efforts of the Task Force with regard to this case are
    warranted because the jurisdiction of the Committee includes:
    ``Measures relating to the election of the President, Vice
    President, or Members of Congress; corrupt practices; contested
    elections; credentials and qualifications; and Federal
    elections generally'' 73
    ---------------------------------------------------------------------------
        \73\ House Rule X(1)(h)(12)
    ---------------------------------------------------------------------------
        In the Course of this investigation the Committee issued
    subpoenas to the Immigration and Naturalization Service, the
    Orange County District Attorney, Hermandad Mexicana Nacional,
    Nativo Lopez, and Michael Farber. The subpoena directed to the
    Immigration and Naturalization Service provided the Task Force
    with the information central to the Task Force's analysis of
    alien voting in the 46th District of California. The subpoena
    directed to the Orange County District Attorney also provided
    important information to the Task Force.

          congressional subpoena for records from the immigration and
                             naturalization service

        On April 19, 1997 the Committee requested that the INS
    compare its databases to the Orange County Voter Registration
    in order to determine if aliens in the INS database were
    registered in Orange County. On May 1st, the day that the
    Committee had requested that the INS provide the results of its
    comparison, the agency wrote that within two weeks, the INS
    would inform the Committee ``* * * whether, when, and in what
    form INS will be able to retrieve and provide you such
    information.''
        The Committee could not accept the INS's dilatory and
    obstructionist response. Therefore, on May 14th, the Committee
    issued two subpoenas to the INS. The first subpoena requested
    the INS to match its database against the Orange County Voter
    Registration list in order to determine if any non-citizens
    registered to vote. The second subpoena requested that the INS
    provide the Committee with copies of their relevant databases.
    On May 21st, in partial compliance with the subpoenas, the INS
    provided to the Committee the results of a last name and date-
    of-birth match 74 between the INS's Central Index
    System and Naturalization Casework System and the Orange County
    voter registration list. This computer run identified over
    368,520 matches in Orange County and approximately 136,052
    matches in the 46th District. All matches are limited to INS
    files that indicate that a person is not naturalized or that
    they naturalized after the date on which they registered to
    vote.
    ---------------------------------------------------------------------------
        \74\ Any data error in the data in either field in either the INS
    or the OC Registration databases would preclude a match. Further, any
    change of last name either due to marriage or Anglicization would
    preclude a match.
    ---------------------------------------------------------------------------
        On April 29th the INS provided the Task Force with a
    refined computer run that identified 19,554 first name/last
    name/date-of-birth matches between an INS file, with either no
    evidence of naturalization or a date of naturalization after
    registration, and the Orange County Voter list. The INS
    indicated that 4,119 of these persons were registered in the
    46th District. An analysis of the 136,052 last name matches by
    the Task Force identified 210 exact first name matches not
    included in the refined run conducted by the INS. These
    additional matches brings the total exact first name matches in
    the 46th District to 4,329.
        The Task Force also manually reviewed the 136,052
    individual list identifying possible additional first name
    matches. This list of 136,052 matches runs to over 2,000 pages.
    This manual review was necessary to capture typographical
    errors and common variations on first names. The Task Force
    discovered an additional 1,502 matches where the first name was
    very similar but was missed by the computer check. These
    additional matches are very narrowly confined to common name
    variations and typographical errors.\75\
    ---------------------------------------------------------------------------
        \75\ i.e. ``Chris'' and ``Christopher'' or ``John'' and ``Johhn''
    ---------------------------------------------------------------------------
        In addition to the CIS and NACS databases the Task Force
    requested last name/date-of-birth matches with the Deportable
    Alien Control System (DACS), the Refugee, Asylee and Parolee
    System (RAPS) and the Student and Schools System (STSC). Again
    the Task Force manually reviewed last name/date-of-birth
    matches for near first name matches missed by a computer check.
    The DACS and RAPS systems yielded an additional 83 potentially
    illegal votes. The STSC system yielded 192 potentially illegal
    votes.
        Beyond these additional INS databases the Task Force cross-
    checked the 19,554 person class list of Naturalization
    Assistance Services Corp. against the voter registration rolls
    and the INS databases. NAS provided citizenship classes in
    Orange County through Catholic Charities, One-Stop Immigration
    Center, and Hermandad Mexicana Nacional. The NAS student list
    included alien numbers and thus allowed the Task Force to
    bypass the last name/date-of-birth match level of matching.
        Also the Task Force obtained lists of persons who the
    Orange County Superior Court had recorded as claiming non-
    citizenship when they were summoned for jury duty. (The Court's
    records have a 33% error rate.) CHO staff manually reviewed
    this list of over 30,000 persons. This check yielded an
    additional 386 potentially illegal votes.
        In January of 1997, the Orange County District Attorney
    seized material from the offices of Hermandad Mexicana
    Nacional. In February of 1997, the Committee on House Oversight
    placed these seized materials under subpoena. In August of
    1997, the House Oversight Committee obtained from the Orange
    County District Attorney's Office, pursuant to the February,
    1997 subpoena, a copy of several lists of names seized from
    Hermandad. The Task Force compared the names obtained from
    Hermandad to the 46th District voter list and identified
    matches between persons associated with Hermandad and voters.
    The Task Force then requested that the INS review its files for
    matches with the 419 voters identified from the Hermandad
    material.
        In addition to these efforts to discover documented
    evidence that a person was not a citizen, the Task Force
    requested, at the suggestion of the minority, that the INS
    produce the mirror image of the initial computer match run by
    the Task Force. That is, the INS ran a match between the Orange
    County Voter Registration Lists and the CIS and NACS seeking
    persons who had evidence that they were citizens as of the date
    that they were registered. The INS generated two matches: a
    full name match and a last name match. Surprisingly, the last
    name match is not entirely inclusive of the full name match.
    Therefore the Task Force compared both lists of persons with
    evidence of citizenship as of their registration date to the
    lists of persons without evidence of citizenship as of their
    naturalization date. This comparison generated over 1,000
    persons with conflicting information. Because the Task Force
    had employed a manual review seeking near first name matches
    when seeking evidence that a person was not a citizen, the Task
    Force also employed a manual review of evidence indicating that
    a person was a citizen at the time of their registration. After
    analyzing these files the Task Force concluded that virtually
    all of the persons with conflicting files were citizens at the
    time of their registration.
        For each match identified by these computer runs the Task
    Force requested that the INS review the actual paper file
    associated with the match. This review of the paper file was
    summarized on a one-page worksheet designed by the Task Force
    in consultation with the INS. This worksheet contained
    information on the citizenship status of the individual, middle
    name data, and the most recent INS address information. The
    paper file reviews conducted by the INS indicated that over 50%
    of the INS files that carried no record of naturalization in
    the computer database actually related to a person who was a
    citizen as of their date of registration.
        In addition to the address and citizenship information
    summarized on the worksheets produced by the INS the Task Force
    requested that the INS provide birthplace and signature
    information for 3,749 persons.
        Throughout this investigation the Democratic Minority
    received, directly from the INS, exactly the same information
    as the Majority. Also, the Majority provided copies of all
    registration affidavits to the Minority.
        The filing system created by the Majority employs the
    unique affidavit number related to an individual voter to
    identify the file (electronic and hardcopy) containing all the
    information relating to the status of that voter. Ideally, each
    person in the INS databases would have one and only one ``alien
    number.'' However, in reality, some persons have multiple alien
    numbers. Often, the different alien number files contain
    inconsistent information as to the citizenship status of the
    individual. This inconsistency most frequently occurs when a
    temporary file is created and that temporary file is not
    indexed back to the original file. The temporary file is
    usually more recent and thus more likely to include a
    naturalization certificate. The INS database often locates the
    primary file first and that leads to the temporary file.
    Further, more than one person in the INS's files may meet the
    initial match criteria between a registered voter and an INS
    file. Therefore, many of the unique affidavitnumbers have
    multiple alien numbers associated with them.
        There is a fundamental problem with any investigation into
    voting by non-citizens. Undocumented or illegal aliens do not
    have a paper trail at the INS. The INS only keeps records on
    documented, legal aliens. Without more accurate data collection
    at the point of registration persons, will be able to register
    using fabricated identities and thus will be difficult if not
    impossible to detect.

                   ballots cast in the november 1996 election

        To determine who cast ballots in the November 1996
    election, the Task Force referred to the information obtained
    directly from the Orange County Registrar's Office. The Task
    Force printed, from the computer list provided by the
    Registrar's office, the entire list of 104,636 people who voted
    in the 1996 election from the 46th District. Each time the Task
    Force received new alien file summary worksheets from the INS,
    the works sheets were separated into two categories: (1) those
    on the voted list and (2) those not on the voted list.
        In addition to the electronic record, the Registrar's
    office provided the Task Force with the results of its manual
    canvass. The manual canvass listed, by precinct, any changes,
    corrections, and updates to the electronic record of votes cast
    that were found during the recount and the review after the
    election. Also, the Registrar provided the Task Force with a
    list of persons who cast absentee ballots but were not listed
    on the electronic voter tape. Finally, the Orange County
    Registrar of Voters provided the Task Force with a list of
    persons who utilized the ``New Citizen Window'' provision of
    the California Elections Code.\76\ This provision allows person
    who naturalize within 30 days of election day to register to
    vote despite the general prohibition on registering to vote
    within 30 days of election day. Because of an automatic default
    in the computer software utilized by the Orange County
    Registrar of Voters, the registration date of these persons
    would default to the last day available to the general
    population. Therefore it would appear that these persons had
    registered prior to their naturalization when in fact they had
    utilized the New Citizen provision. Also, the Task Force
    determined that persons who were naturalized prior to the 1996
    election cycle but after they had registered had cured their
    defective registration by maintaining their registration
    subsequent to naturalizing. The Democratic Minority was
    provided with all of the material from the Orange County
    Registrar of Voters.
    ---------------------------------------------------------------------------
        \76\ Cal. Elec. Code. Sec. 3501.
    ---------------------------------------------------------------------------
        On October 28, 1997 the Task Force requested that the
    California Secretary of State reconfirm the list of persons who
    had cast ballots in the November, 1996 election. The Task
    Force's Democratic Minority received an exact copy of the list
    provided to the Secretary of State. The list provided to the
    Secretary of State at this juncture in the investigation
    included the widest possible definition of a ``match''. For
    example, it included ``matches'' that involved persons with
    different middle names and persons with conflicting INS
    information. Ultimately, the Task Force determined that the
    majority of persons included on this list were registered
    properly either because additional INS data obtained by the
    Task Force indicated that the person was a citizen as of
    registration or the voter did not constitute a sufficiently
    accurate match with an INS file that indicated an illegal
    registration. On November 5, 1997, Secretary of State Jones
    provided the Task Force with a list confirming which registered
    voters had cast ballots in the November, 1996 election. The
    Task Force updated its files on the voters so that it contained
    the verification provided by the Secretary of State. The Task
    Force's Democratic Minority received an exact copy of Secretary
    of State Jones's vote verification.

              analysis of the evidence obtained by the task force

        Based on the information in this INS summary and the
    information in the Orange County voter list, the potential
    matches identified by the Task Force have been divided into 15
    categories. Each category is based upon a match between the
    Orange County voter registration rolls and INS records, and/or
    the source of the information that casts suspicion as to the
    legitimacy of that voter. Each category is in turn subdivided
    based on relevant criteria such as the naturalization status of
    the individual in the INS files, the place of birth claimed by
    the person on the Orange County voter registration affidavit,
    the age of the individual or the sex of the individual. The
    naturalization status categories are: (1) the individual is not
    naturalized, (2) the individual naturalized after registering
    to vote, and (3) the individual naturalized after voting.
        The Task Force's analysis of each individual vote rests on
    the rebuttable presumption that each vote cast was cast
    legally. Therefore, the Task Force undertook the task of
    discovering documentary evidence that a person was not a
    citizen as of the date of their registration. The Task Force
    never presumes that any voters were illegal.
        The Task Force's effort to investigate this allegation has
    involved the detailed review of information related to over
    7,871 voters. The Task Force has only reviewed voters for whom
    the Task Force obtained an initial indication that the person
    may not have been eligible to cast a ballot in the November
    1996 election.
        The Task Force has documented evidence indicating that 624
    persons registered when they were not citizens. Of these, 82
    persons naturalized after they registered but before they cast
    their ballot. In addition, 26 claimed that they were born in
    the United States when they registered. The Task Force has
    attempted to verify the birth-records of these voters that
    appear to match INS files. Persons whose birth-records have
    been verified have been removed from the Majority's count.
    However, without additional information such as mother's maiden
    name and city of birth, a birth-record check is impossible to
    complete accurately.
        In addition there are 196 persons for whom the Task Force
    has discovered some circumstantial indication that they may not
    have been citizens when they registered. However this
    information is incomplete and possibly inaccurate. For example,
    records of individuals who have disclaimed citizenship when
    summoned for jury duty have a 33% error rate. When a sample of
    450 records was tested, it was determined 150 records were
    incorrectly scanned into the Orange County Superior Court's
    computer database. Also, a number of paper files have been
    ``lost'' by the INS and the error rate between electronic and
    paper files exceeds 50%. Finally, 41 matches in this
    circumstantial category involve voters who claim U.S. birth.
        Of the remaining files reviewed by the Task Force: 5,303
    persons were actually citizens at the time that they registered
    and 1,718 persons appear to have registered improperly but did
    not vote in the November 1996 election. Summary of Results:

    ------------------------------------------------------------------------
                       Category
    ------------------------------------------------------------------------
                      Documented Evidence of Invalid Voting
    1. Absentee Ballots--identified by the OC
     Registrar....................................         124   ...........
                                                   -------------------------
          Sub-total...............................         124          124
                                                   =========================
    2. Hermandad Registrants--identified by the
     California Secretary of State and the LA
     Office of the INS (independently confirmed by
     CHO work)....................................         278
    4. Exact Address..............................         120   ...........
    3. Signatures Match...........................          71   ...........
    5. Exact Middle Initial.......................          88   ...........
    6. Address Same City..........................          19   ...........
    7. Address CA-46..............................           3   ...........
    8. Address Orange County......................           7   ...........
    9. Address California.........................          38   ...........
                                                   -------------------------
          Sub-total...............................         624          748
                                                   =========================
                   Circumstantial Indication of Invalid Voting
    10. Address US................................          53   ...........
    11. Address None..............................          12   ...........
    12. Border Crossing Cards (only name and
     birthdate information).......................          34   ...........
    13. Student Visas (only name and birthdate
     information).................................           3   ...........
    14. INS Lost paper files (born after 1957)....          19   ...........
    15. OC Jury List (born after 1957)............          75   ...........
                                                   -------------------------
          Sub-total...............................         196          944
    ------------------------------------------------------------------------

    1. The Orange County Registrar of Voters: 124

         The Orange County Registrar of Voter determined that 124
    absentee ballots were invalid. The Registrar also referred 11
    potential double votes and 4 potential business address votes
    to the Orange County District Attorney. The District Attorney
    has not confirmed that any of these votes were illegal and
    therefore has taken no action.

    2. Persons Registered by Hermandad Mexicana Nacional: 278

        The California Secretary of State and the Los Angeles
    Office of the INS have identified 306 persons illegally
    registered by Hermandad who voted in the November 1996
    election. The Task Force has been able to confirm, through its
    own investigation, that 278 persons were illegally registered
    by Hermandad and voted in the November, 1996 election. Of
    these, 93 voters were naturalized after they registered.

    3. Exact address

        In addition to a First Name/Last Name/Date-of-Birth match,
    the address from the Orange County voter registration affidavit
    matches the address in an INS file.

    ----------------------------------------------------------------------------------------------------------------
                                                                   Naturalized  Naturalized
                                                          Not         after        after        Total       Total
                                                      naturalized  registering     voting                 (percent)
    ----------------------------------------------------------------------------------------------------------------
    Voter claims foreign birthplace.................           49           61            7         117         97.5
    Voter claims US birthplace......................            3            0            0           3          2.5
                                                     ---------------------------------------------------------------
          Total.....................................           52           61            7         120        100
                                                            43.3%        50.8%         5.8%
    ----------------------------------------------------------------------------------------------------------------

    4. Matching signatures

        The signature from the Orange County voter registration
    affidavit matches the signature from an INS alien file.

    ----------------------------------------------------------------------------------------------------------------
                                                                   Naturalized  Naturalized
                                                          Not         after        after        Total       Total
                                                      naturalized  registering     voting                 (percent)
    ----------------------------------------------------------------------------------------------------------------
    Voter claims foreign birthplace.................           54            9            1          64         90.1
    Voter claims US birthplace......................            5            2            0           7          9.9
                                                     ---------------------------------------------------------------
          Total.....................................           59           11            1          71        100
                                                            83.1%        15.5%         1.4%
    ----------------------------------------------------------------------------------------------------------------

    5. Exact middle initial

        In addition to a First Name/Last Name/Date-of-Birth match,
    the middle initial from the Orange County voter registration
    rolls matches the middle initial from the INS records. The
    address information that relates to these matching files
    subdivides the middle initial matches.

    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                     Total
                                                                    A-SC           A-CA46         A-9C      A-CA        A-US       A-NO    Total   (percent)
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Voter claims foreign birthplace............................   17/2 nar     10/1 nar/1 nav        7     21/1nav          13        7       80      90.9
    Voter claims US birthplace.................................          0                  0        1           0     5/1 nar        1        8       9.1
                                                                --------------------------------------------------------------------------------------------
          Total................................................         19                 12        8          22          19        8
                                                                     21.6%              13.6%     9.1%         25%       21.6%     9.1%       88       100
    --------------------------------------------------------------------------------------------------------------------------------------------------------

    6. Address same city

        In addition to a First Name/Last Name/Date-of-Birth match,
    the address from the Orange County voter registration affidavit
    is in the same city as the address from an INS record. Middle
    initial data is either blank in both the Orange County
    registration file and the INS file or blank in one set of data.

    ----------------------------------------------------------------------------------------------------------------
                                                                   Naturalized  Naturalized
                                                          Not         after        after        Total       Total
                                                      naturalized  registering     voting                 (percent)
    ----------------------------------------------------------------------------------------------------------------
    Voter claims foreign birthplace.................           16            0            0          16         84.2
    Voter claims US birthplace......................            2            1            0           3         15.8
                                                     ---------------------------------------------------------------
          Total.....................................           18            1            0
                                                            94.7%        5.35%           0%          19        100
    ----------------------------------------------------------------------------------------------------------------

    7. Address CA-46

        In addition to a First Name/Last Name/Date-of-Birth match
    the address from the Orange County voter registration
    affidavits and the address from an INS record are both within
    CA-46. Middle initial data is either blank in both the Orange
    County registration file and the INS file or blank in one set
    of data.

    ----------------------------------------------------------------------------------------------------------------
                                                                               Naturalized  Naturalized
                                                                      Not         after        after        Total
                                                                  naturalized  registering     voting
    ----------------------------------------------------------------------------------------------------------------
    Voter claims foreign birthplace.............................            3            0            0            3
    Voter claims US birthplace..................................            0            0            0            0
                                                                 ---------------------------------------------------
          Total.................................................            3            0            0            3
    ----------------------------------------------------------------------------------------------------------------

    8. Address Orange County

        In addition to a First Name/Last Name/Date-of-Birth match:
    the address from the Orange County voter registration
    affidavits and the address from an INS record are both within
    Orange County. Middle initial data is either blank in both the
    Orange County registration file and the INS file or blank in
    one set of data.

    ----------------------------------------------------------------------------------------------------------------
                                                                               Naturalized  Naturalized
                                                                      Not         after        after        Total
                                                                  naturalized  registering     voting
    ----------------------------------------------------------------------------------------------------------------
    Voter claims foreign birthplace.............................            7            0            0            7
    Voter claims US birthplace..................................            0            0            0            0
                                                                 ---------------------------------------------------
          Total.................................................            7            0            0            7
    ----------------------------------------------------------------------------------------------------------------

    9. Address California

        In addition to a First Name/Last Name/Date-of-Birth match:
    the address from the Orange County voter registration
    affidavits and the address from an INS record are both within
    California. Middle initial data is either blank in both the
    Orange County registration file and the INS file or blank in
    one set of data. Eight of the INS addresses in this data are
    dated and place the individual at the address outside of Orange
    County in 1995-96.

    ----------------------------------------------------------------------------------------------------------------
                                                                   Naturalized  Naturalized
                                                          Not         after        after        Total       Total
                                                      naturalized  registering     voting                 (percent)
    ----------------------------------------------------------------------------------------------------------------
    Voter claims foreign birthplace.................           28            0            0          28         73.7
    Voter claims US birthplace......................           10            0            0          10         26.3
                                                     ---------------------------------------------------------------
          Total.....................................           38            0            0          38        100
    ----------------------------------------------------------------------------------------------------------------

    10. Address United States

        In addition to a First Name/Last Name/Date-of-Birth match:
    the address from the Orange County voter registration
    affidavits and the address from an INS record are both within
    the United States. Middle initial data is either blank in both
    the Orange County registration file and the INS file or blank
    in one set of data. Thirteen of the INS addresses in this data
    are dated and place the individual at the address outside of
    California in 1995-96.

    ----------------------------------------------------------------------------------------------------------------
                                                                   Naturalized  Naturalized
                                                          Not         after        after        Total       Total
                                                      naturalized  registering     voting                 (percent)
    ----------------------------------------------------------------------------------------------------------------
    Voter claims Foreign birthplace.................           31            5            0          36         67.9
    Voter claims US birthplace......................           17            0            0          17         32.1
          Total.....................................           48            5            0          53        100
                                                     ---------------------------------------------------------------
                                                            90.6%         9.4%            0
    ----------------------------------------------------------------------------------------------------------------

    Address none

        In addition to a First Name/Last Name/Date-of-Birth match:
    the INS records have either no address information whatsoever
    or address information that relates to a foreign locale. Middle
    initial data is either blank in both the Orange County
    registration file and the INS file or blank in one set of data.

    ----------------------------------------------------------------------------------------------------------------
                                                                    Naturalized  Naturalized
                                                           Not         after        after        Total       Total
                                                       naturalized  registering     voting                 (percent)
    ----------------------------------------------------------------------------------------------------------------
    Voter claims foreign birthplace..................           11            0            0          11        91.7
    Voter claims US birthplace.......................            1            0            0           1         8.3
                                                      --------------------------------------------------------------
            Total....................................           12            0            0          12         100
    ----------------------------------------------------------------------------------------------------------------

    Border crossing cards

        A Citizen of Canada or a British subject residing in Canada
    or a citizen of Mexico may hold a nonresident alien border
    crossing card.\77\ These persons are assigned alien numbers
    beginning with ``80. A Border Crossing Card holder may enter
    limited areas of the United States for limited periods of time.
    The INS does not maintain a paper file on such persons.\78\
    ---------------------------------------------------------------------------
        \77\ 8 CFR Sec. 212.6 Nonresident alien border crossing cards.
        \78\ INS letter July 3, 1997.

    ----------------------------------------------------------------------------------------------------------------
                                                       Exact     Indeterminate
                                                       middle        middle        Total        Percent
                                                      initial       initial
    ----------------------------------------------------------------------------------------------------- -------------
    Voter claims foreign birthplace...............           17             6            23          67.6
    Voter claims US birthplace....................            4             7            11          32.4
                                                   -----------------------------------------------------------------
          Total...................................           21            13            34         100
                                                          61.8%         38.2%
    ----------------------------------------------------------------------------------------------------------------

    Student visas

        These are matches between persons who have entered the
    United States on student visas and the Orange County
    registration files. The INS maintains limited information on
    these persons.

                                                                       Total
    Voter claims foreign birthplace...................................     3
    Voter claims US birthplace........................................     0
                            -----------------------------------------------------------------
                            ________________________________________________
        Total.........................................................     3

    INS lost files

        These persons appear in the INS' electronic database
    without any evidence of naturalization but the INS has lost
    their hard files. The error rate between the initial electronic
    matches between the INS' electronic database and the checks of
    the INS' hard files has been 50%--half of the persons with no
    indication of naturalization in the computer database have
    naturalization certificates in their hard files. In addition,
    persons who became 18 prior to 1975 could have naturalized
    before the INS computerized its records. Women's files could
    also have been ``lost'' because they have changed their last
    name without notifying the INS or without the INS properly
    updating its database. There are 13 males born after 1957 who
    admit foreign birthplaces in this category.

    ----------------------------------------------------------------------------------------------------------------
                                                              Male             Female          Total        Total
    ----------------------------------------------------------------------------------------------------  (percent)
                        Birth date                            1957+             1957+                   ------------
    ----------------------------------------------------------------------------------------------------
                                                                                                        ------------
                      Middle initial                      EMI      IMI      EMI      IMI
    ----------------------------------------------------------------------------------------------------------------
    Voter claims foreign birthplace...................        8        1        4        4         17         89.5
    Voter claims U.S. birthplace......................        0        1        0        1          2         10.5
                                                       -------------------------------------------------------------
          Total.......................................        8        2        4        5         19
                                                       -------------------------------------------------------------
          Total.......................................
    (1)10
    (1)9                                                     19
                                                       -------------------------------------------------------------
          Total (percent).............................  .......     52.6  .......     47.4  ...........        100
    ----------------------------------------------------------------------------------------------------------------

    15. Orange County jury list claimed non-citizen when summoned & the INS
            has no record: 167

        In the period from January 1, 1996 to August 15, 1997 these
    persons may have claimed that they were not citizens when
    summoned for jury duty. The data entry system at the Orange
    County Superior Court has at least a 33% error rate. Therefore,
    these persons may have been excused from jury duty for a reason
    other than not being a citizen. (persons may also have
    indicated that they were citizens but been entered under a
    different code). In addition, for persons who naturalized
    before 1975, the INS may not have their names in their
    electronic databases. Further, women are more likely to have
    changed their last name. Therefore, the persons that arouse the
    most significant suspicion are the 40 admittedly foreign-born
    males born after 1957.

    ----------------------------------------------------------------------------------------------------------------
                                                                      Male        Female       Total        Total
    ----------------------------------------------------------------------------------------------------  (percent)
                                                                                                        ------------
                             Birth date                              1957+        1957+
    ----------------------------------------------------------------------------------------------------------------
    Voter claims foreign birth place............................           40           25           65         86.7
    Voter claims U.S. birthplace................................            7            3           10         13.3
                                                                 ---------------------------------------------------
          Total.................................................           47           28           75
                                                                 ---------------------------------------------------
          Total (percent).......................................         62.7         37.3          100
    ----------------------------------------------------------------------------------------------------------------

                         APPENDIX C: APRIL 19TH HEARING

                                    Hearing

                      april 19, 1997 santa ana, california

        On February 12, 1997, the Contestee wrote Task Force
    Chairman Vern Ehlers and Ranking Minority Member Steny Hoyer
    inviting the Task Force to conduct a Field Hearing in Orange
    County that ``* * * would convincingly demonstrate to the Task
    Force that no credible evidence cast doubt on the certified
    results of the November 6 election.''
        At that time, claims of voting fraud had been substantiated
    independently by local newspapers, the Orange County District
    Attorney, and the Secretary of State of California. The Task
    Force, at its February 26, 1997 meeting, postponed disposition
    of the Contestee's motion to dismiss election and moved that
    Task Force hold a Field Hearing in Orange County.
        The Task Force held the Field Hearing on April 19, 1997 at
    the Santa Ana Court House. The Task Force heard eight hours of
    testimony from the contest's parties, election officials and
    other interested groups. Testimony was heard from California
    Secretary of State Bill Jones, Orange County District Attorney
    Michael Capizzi, Los Angeles District Director of the
    Immigration and Naturalization Service Richard Rogers, Orange
    County Registrar of Voters Rosalyn Lever, Robert K. Dornan,
    William Hart, Congresswoman Sanchez, Wylie Aitken and former
    Secretary of State Tony Miller.
        Information gathered at this Field Hearing indicated that
    the Immigration and Naturalization Service was unwilling to
    assist either the Contestant or the Secretary of State Bill
    Jones in determining if non-citizens voted in the 1996
    election.\79\
    ---------------------------------------------------------------------------
        \79\ Task Force for the Contested Election in the 46th
    Congressional district of California: Hearing on the Merits p. 13.

              APPENDIX D: INTERROGATORIES ISSUED BY THE COMMITTEE

           Interrogatories Issued by the Committee on House Oversight

                                October 1, 1997

        By September 1997, nearly a year had passed since the 1996
    election and many months since the issuance of the Contestant's
    subpoena's, yet many entities central to the investigation into
    vote fraud still had not answered important questions as to
    what they knew or how they were involved with the election.
        At its September 24, 1997 meeting, the Committee on House
    Oversight voted to authorize the Chairman, in consultation with
    the Ranking Member, to issue interrogatories relevant to the
    contested election.\80\ The Committee's Ranking Minority
    Member, Sam Gejdenson, requested that the interrogatories be
    sent within 7 days of the meeting. After the Committee Chairman
    discussed the interrogatories with the Ranking Minority Member,
    the interrogatories were issued to Michael Farber, Nativo
    Lopez, Hermandad, Robert Dornan, Loretta Sanchez,\81\ Wylie
    Aitken, John Shallman and Bennie Hernandez.
    ---------------------------------------------------------------------------
        \80\ Rule XI, clause 2(m)(1)(B) of the Rules of the House of
    Representatives. Rule No. 6(a)(2) of the Rules of Procedure of the
    Committee on House Oversight.
        \81\ At the September 24, 1997 meeting the Committee quashed the
    Contestant's subpoena for the personal deposition of Loretta Sanchez.
    The interrogatories issued by the Committee afforded the parties a less
    confrontational venue for establishing the facts of this case.
    ---------------------------------------------------------------------------
        The Democratic Minority was afforded the opportunity to
    send interrogatories to individuals not included on the list
    discussed in Committee. Because the Minority failed to notify
    the Majority in a timely fashion of its intent to issue
    interrogatories to the California Secretary of State and the
    Orange County District Attorney, these interrogatories were
    issued one day later.
        Both Michael Farber and Nativo Lopez refused to answer the
    interrogatories. Unfortunately, there is no statutory mechanism
    by which the House can compel compliance with an
    interrogatory.\82\
    ---------------------------------------------------------------------------
        \82\ 2 U.S.C. Sec. 192 & Sec. 194 provide for the enforcement of
    subpoenas issued by Congress, but make no provision for
    interrogatories.
    ---------------------------------------------------------------------------
        Congresswoman Sanchez's campaign manager, John Shallman
    asserted in his interrogatory response that it had rebuffed
    overtures by Nativo Lopez, through Art Montez of LULAC-Santa
    Ana, to assist her campaign in exchange for financial
    assistance to his political efforts. Sanchez's campaign manager
    asserted that Lopez wanted ``to get some money from us [the
    Sanchez campaign] for all the work he had been doing
    [registering voters].'' \83\
    ---------------------------------------------------------------------------
        \83\ Interrogatory of John Shallman.
    ---------------------------------------------------------------------------
        Benny Hernandez denied the accusations \84\ of Nelson
    Molina and Jana Carty that he had encouraged non-citizen voting
    and double voting.
    ---------------------------------------------------------------------------
        \84\ Task Force for the Contested Election in the 46th
    Congressional district of California: Hearing on the Merits p. 199-204.

                 APPENDIX E: SUBPOENAS ISSUED BY THE COMMITTEE

              Subpoenas Issued by the Committee on House Oversight

        On February 11, 1997, the Committee on House Oversight met
    and granted the Chairman, in consultation with the Ranking
    Minority Member, the authority to issue subpoenas for the
    purpose of obtaining information related to the contested
    election or the voter fraud investigation.\85\
    ---------------------------------------------------------------------------
        \85\ House Oversight Committee Rule 6 and House rule 11 Clause
    2(m)(2)(A).
    ---------------------------------------------------------------------------
        During the voter fraud investigation, Congresswoman Sanchez
    and the Democratic Minority repeatedly declared that the
    Congresswoman and those that were involved with registering
    non-citizens to vote (i.e., Hermandad) never had any contact
    with one another. When asked directly by Congressman Ney at the
    April 19, 1997 Field Hearing if she or her campaign had any
    contact with Hermandad, Congresswoman Sanchez, under oath,
    responded ``Not at all.'' \86\ Although later at that same
    hearing, Congresswoman Sanchez admitted that she did meet with
    Nativo Lopez once during the campaign.\87\
    ---------------------------------------------------------------------------
        \86\ Hearing Before the Committee on House Oversight Task Force for
    the Contested Election in the 46th Congressional District of
    California; April 19, 1997.
        \87\ Hearing Before the Committee on House Oversight Task Force for
    the Contested Election in the 46th Congressional District of
    California; April 19, 1997.
    ---------------------------------------------------------------------------
        In the material that was originally obtained by the Orange
    County District Attorney and then forwarded to the Committee,
    several documents showed that there was in fact a larger
    involvement between Hermandad and Congresswoman Sanchez than
    was declared by the Minority. Two phone message slips that were
    seized from Nativo Lopez's office have Congresswoman's
    Sanchez's name and a phone number on them. These messages
    suggest that Mr. Lopez and Representative Sanchez were
    exchanging phone calls during the campaign.
        Other information obtained shows that Hermandad, despite
    its non-profit status, was a politically active organization
    immersed in Democratic politics. Hermandad not only opposed
    Robert Dornan but promoted the success of the Democratic party
    and the political ambitions of its Director, Nativo Lopez.

           APPENDIX F: INVESTIGATIONS BY STATE AND LOCAL AUTHORITIES

                      The Orange County District Attorney

        In December, 1996 the Orange County District Attorney
    Michael Capizzi announced that his office would begin an
    investigation into allegations of voter fraud in the November
    1996 elections held in Orange County, California. As part of
    this investigation, Capizzi examined Hermandad Mexicana
    Nacional for possible violations of state election law. At the
    center of his investigation was the allegation that Hermanadad
    Mexicana Nacional had knowingly and willfully registered large
    numbers of non-citizens to vote in 1996. On January 14, 1997
    the office of the District Attorney conducted a raid of
    Hermandad Mexicana Nacional, impounding many pieces of
    potential evidence, including computers, files, and
    organization records. In early December 1997, after a year long
    investigation, an Orange County grand jury declined to indict
    several individuals who coordinated the Hermandad Mexicana
    Nacional voter registration effort. At least one witness who
    had worked for Hermandad fled to Mexico early in 1997, making
    the investigation more difficult. Although the District
    Attorney failed to bring indictments, his research, together
    with that completed by the Secretary of State, did prove that
    61% percent of Hermandad's registrations were illegal.

                       The California Secretary of State

        In December, 1996 California Secretary of State Bill Jones
    announced that his office would begin an investigation into
    allegations of voter fraud in the November 1996 elections held
    in Orange County, California. With the initial cooperation of
    the INS's Los Angeles district office, the Secretary of State
    announced on April 9, 1997 that of 1,100 persons enrolled in
    Hermandad citizenship classes, 490 documented non-citizens had
    registered to vote in CA 46. Of these, 303 actually voted
    illegally in CA 46, and 69 individuals had no record in INS
    files. On September 15, 1997 the Committee wrote to the
    California Secretary of State, in his capacity as the chief
    election officer of the State of California, to request that he
    review and verify the results of the Committee's voter
    analysis. One month later, the Secretary of State confirmed
    which of the individuals identified by the Committee as non-
    citizens had voted in the November 1996 election.

    APPENDIX G: CONTESTANT'S CRIMINAL COMPLAINT AGAINST HERMANDAD MEXICANA
                                    NACIONAL

      Failure To Comply With Federal Contested Election Act Subpoenas--H.
                                    Res. 244

        In the Dornan v. Sanchez case 11 parties 88
    failed to comply with subpoenas issued under the Federal
    Contested Election Act.89
    ---------------------------------------------------------------------------
        \88\ Hermandad Mexicana Nacional, Hermandad Mexicana Nacional Legal
    Center, Nativo Lopez, the Committee for Loretta Sanchez, Nativo Lopez
    for School Board, Humberto Corona, Michael Farber, Lou Correa for State
    Assembly, Southwest Voter Registration Project, Benny Hernandez, and
    One-Stop Immigration and Education Center.
        \89\ 2 U.S.C. Sec. 388.
    ---------------------------------------------------------------------------
        Section 390 of the FCEA provides that ``Every person who,
    having been subpoenaed as a witness under the Act to give
    testimony or produce documents, willfully makes default * * *
    shall be deemed guilty of a misdemeanor. * * *''
        Amongst the parties defaulting is Hermandad Mexicana
    Nacional, the organization at the center of the vote fraud
    allegations in this case. On May 1, 1997 Hermandad failed to
    comply with a subpoena as modified by the Committee on House
    Oversight on April 16, 1997. On May 14th Contestant Dornan
    referred Hermandad to the U.S. Attorney in Los Angeles for
    prosecution pursuant to 2 U.S.C. Sec. 390. After an exchange of
    correspondence between the US Attorney and the Contestant, the
    Department of Justice failed to take any action against
    Hermandad. Therefore, the Committee inquired as to the status
    of the criminal complaint on June 23rd. The Department of
    Justice responded on July 25th that the complaint was still
    under review. Once again, the Department of Justice was
    impeding the investigation of this contested election.
    Therefore, the Committee reported to the House of
    Representatives and the House passed H. Res. 244 calling upon
    the Department of Justice to fulfill its responsibility to
    enforce the provisions of the Federal Contested Elections Act.
        The Justice Department has never prosecuted any entity for
    defaulting on a lawful subpoena issued under the Federal
    Contested Elections Act.
        Without the assistance of the Executive Branch proper
    adjudication of a contested election has been severely
    hampered.

          APPENDIX H: FEDERAL COURT DECISIONS FEDERAL COURT DECISIONS

                               Dornan v. Sanchez

                            federal court decisions

        Among the most important advances that this particular
    contested election made to promote the integrity of the
    nation's elections are the several Federal Court challenges
    that the Federal Contested Elections Act experienced.
        The most significant Federal Court decision occurred on
    September 23, 1997 that was issued from the US District Court
    of the Central District of California. This court decision
    arose from an attempt by Hermandad Mexicana Nacional to stay
    the production of documents to the Contestant by the Orange
    County District Attorney. The District Attorney's office seized
    the documents pursuant to a search warrant. Hermandad
    challenged the constitutionality of the FCEA's subpoena
    provisions. The Contestee joined in the unconstitutionality
    argument. In the interest of defending the prerogatives of the
    institution, the House of Representatives filed an amicus brief
    with the Court. Judge Taylor held in that decision that * * *
    the deposition subpoena provisions of the Federal Contested
    Elections Act * * * are constitutional.
        Another significant court decision involving this contested
    election occurred on March 13, 1997 that was also issued from
    the US District Court of the Central District of California. In
    this case, the Contestee sought relief from the Contestant's
    subpoenas that were issued from the District Court. Ultimately,
    Judge Taylor ruled that the blank subpoenas issued by the
    Magistrate Judge were irregular on their face and they were
    withdrawn. Any subsequent subpoenas would be issued by
    application to the District Court itself. Finally, the Court
    noted that ``Any future request to quash or restrict * * * a
    Sec. 388 subpoena document demand should be directed to the
    House and not the court. Based on this order the Contestant
    issued several subpoenas.

                           APPENDIX I: INS PRODUCTION

               Immigration and Naturalization Service Production

        On April 24, 1997, the Committee wrote to INS Director
    Doris Meissner requesting assistance from the INS. Nearly a
    week later, the Committee wrote a letter to Attorney Janet Reno
    to request assistance from the INS. However, on May 1st,
    instead of providing the Committee the information it
    requested, the INS wrote a letter to the Committee indicating
    that the INS would decide at some future date whether and when
    the INS would assist the Committee. The INS letter appeared to
    reflect, almost point-for-point, the concerns expressed by the
    Democratic Minority in a letter sent to the INS just days
    earlier.
        Faced with these obstructionist tactics, the Committee
    issued two subpoenas to the INS on May 14th. These subpoenas
    compelled the INS to assist the Committee with its adjudication
    of the Contested Election in California's 46th District.
        Over the next 6 months, the Committee made several requests
    for additional information including naturalization status,
    summaries of alien files, copies of signatures, and birthplace
    information. Of the more than 20 information requests the
    Committee made the INS completed only two of them within the
    time requested by the Committee. In fact, the INS's continued
    to deliver material to the Committee on the Friday after it had
    dismissed the contested election, a month after the Committee's
    deadline.
        In total, the INS has produced 7,868 alien file summary
    worksheets.

                                 MINORITY VIEWS

                                I. Introduction

        For the 30th time since the passing of the Federal
    Contested Election Act (``FCEA'' or ``Act'') 1
    nearly three decades ago, the House of Representatives was
    asked to exercise the authority vested in it by the United
    States Constitution 2 and make the final decision as
    to a disputed election for one of its seats. No committee of
    the House 3 faced with such an election contest,
    even those where the margin of victory was as small as twenty-
    one votes,4 had ever denied a contestee's motion to
    dismiss, until this contest. And in nearly three decades, no
    committee hearing a challenge brought under the FCEA had ever
    failed ultimately to find for the candidate certified by their
    state as the winner of the election.
    ---------------------------------------------------------------------------
        \1\ 2 U.S.C. Sec. 281 et seq., P.L. 91-138 (1969).
        \2\ U.S. Const. Art. 1, Sec. 5 (``Each House shall be the Judge of
    the Elections, Returns and Qualifications of its own Members * * *'').
        \3\ Challenges were previously heard in the former House
    Administration Committee and/or a task force or ad hoc committee
    appointed by the House.
        \4\ Munster v. Gejdenson, (104th Cong.).
    ---------------------------------------------------------------------------
        There are several reasons for this overwhelmingly
    consistent precedent, including: the deference that the House
    has shown to state election challenge procedures; the fact that
    the FCEA places high burdens on contestants seeking to overturn
    elections; and the clear requirement that the contestant do
    more than make allegations of misconduct, but instead show
    ``credible'' evidence that the election result was erroneous
    and that the state was wrong in certifying the winner. But
    perhaps the most compelling reason why no challenge had ever
    proceeded past the motion to dismiss phase had been the respect
    that the House had shown for the democratic electoral processes
    administered under constitutional authority 5 vested
    in the states, and the recognition that only with great
    hesitancy and compelling need should a small number of elected
    federal officials eviscerate the voices of hundreds of
    thousands of people expressed through the democratic process.
    ---------------------------------------------------------------------------
        \5\ Art. 1, Sec. 4 (``The Times, Places and Manner of holding
    Elections for Senators and Representatives, shall be prescribed in each
    State by the Legislature thereof * * *'')
    ---------------------------------------------------------------------------
        The American electoral process is not perfect, and this
    election was no exception. But it is not its perfection that
    makes our democratic system the envy of the world, it is
    instead the fundamentally human--and thus sometimes imperfect--
    nature of the process whereby citizens express their will,
    through a system administered by citizens, whereby we choose
    individuals who will govern us. In many ways this system is no
    more perfect than the people who make it up at every stage, but
    it is nevertheless the core of self governance.
        There may have been mistakes, problems, or even
    illegalities in the election in the 46th District of
    California, as in many other elections. But our system provides
    many ways of dealing with such problems without having a few
    elected federal officials in Washington invalidate the people's
    process. In this case, the District Attorney, the Secretary of
    State, and the Immigration and Naturalization Service undertook
    inquiries into allegations of misconduct or irregularities.
    This is precisely where such inquiries should have properly
    lay. Indeed, the Contestant in this case made no showing which
    called for any appropriate action other than that undertaken by
    these authorities.
        While the Minority agrees with the result in this election
    contest, we believe that the Majority failed to follow
    established processes. As set forth below, the Majority
    improperly calculated the number of allegedly ``illegal'' votes
    cast in the election. They retained whole categories of votes
    in their final number of disputed votes for which they could
    not establish any ``illegalities.'' The Majority ignored
    Committee precedent by failing to dismiss Contestant's notice
    of election contest when he did not show any ``credible''
    evidence that the outcome of the election should have been
    different. Similarly, they disregarded precedent in refusing to
    proportionally reduce their total number of disputed votes to
    account for the inability to know for which candidate voters
    cast the disputed votes.

                  II. Unfairness of Process/Procedural History

          A. From The Outset The Majority Disregarded Minority Rights

        Before and during the first Task Force meeting on February
    26, 1997, the Majority misled the Minority and improperly
    limited Minority participation in the investigation.
        Prior to the February 26th Task Force meeting, Majority
    staff advised Minority staff that the Task Force would grant
    Mrs. Sanchez' Motion for a Definite Statement of Contestant
    Dornan's claims. However, at the Task Force meeting, the
    Majority resolved to postpone disposition of Mrs. Sanchez'
    motion to dismiss until a hearing on the merits. This triggered
    the FCEA's discovery provisions. In addition, the Majority
    circulated an inaccurate agenda for the meeting. The agenda
    reflected the staff discussions, but not the actions of the
    Task Force. At that Task Force meeting, Chairman Ehlers
    inappropriately ruled out of order Mr. Hoyer's amendment to
    delete the phrase ``until a hearing on the merits'' and insert
    ``field hearing''--which would have achieved precisely the
    result the Majority sought. Chairman Ehlers also denied Mr.
    Hoyer's request to include Minority Counsel Roger Ballentine's
    written recommendation in the record.

      B. The Majority Did Not Provide Official Committee Documents To The
                                    Minority

        On March 3, 1997, the Minority learned from press accounts
    that the Majority had not provided it with copies of official
    documents filed with the Committee, including motions to quash
    subpoenas. When confronted, the Majority apologized and
    promised to promptly provide the Minority all documents filed
    with the Committee. However, problems persisted. For example,
    the Majority received the INS' motion to quash Contestant
    Dornan's subpoena on April 15, 1997. On April 16, 1997, the
    Committee met to consider pending subpoenas with the Minority
    under the mistaken impression that the INS had not responded.
    On April 19, 1997, theTask Force held its field hearing and
    heard testimony from INS witnesses, with the Minority still under the
    impression that the INS had not responded to the subpoena. In fact, the
    Minority did not receive the motion until April 22, 1997--a week after
    the Majority received it.
        In addition, the Minority was refused access to materials
    on the basis that confidentiality agreements were not signed by
    Minority staff. However, on numerous occasions when this
    requirement was asserted, the Majority staff themselves had not
    signed such agreements.
        Finally, the Majority withheld the receipt of Mr. Dornan's
    final filings from the Minority even in the face of direct
    Minority Member query.

    C. The Majority Violated House Rules By Denying The Minority The Right
             To Call Witnesses At The April 19, 1997 Field Hearing

        House Rule XI states in pertinent part:
              * * * * * * *

    Calling and interrogation of witnesses

              (j)(1) Whenever any hearing is conducted by any
            committee upon any measure or matter, the minority
            party members on the committee shall be entitled, upon
            request to the chairman by a majority of them before
            the completion of the hearing, to call witnesses
            selected by the minority to testify with respect to
            that measure or matter during at least one day of
            hearing thereon.
              * * * * * * *
        The Minority has the right to call witnesses at any
    Committee hearing, or to have a day of witnesses reasonably
    contemporaneously with the hearing. The Minority's request to
    call witnesses at the April 19 th field hearing was refused by
    the Majority, and no Minority witness day was provided, in
    violation of the Rule.

    D. The Majority Denied The Minority Access To Materials Provided By INS
                        And The Orange County Registrar

        On June 17, 1997, the Minority staff asked the Majority
    staff for access to various Orange County (``Orange County'' or
    ``OC'') and INS computer tapes provided to the Committee. The
    Majority staff consulted internally, then advised Minority
    staff that access would be granted. On June 18 th, the Majority
    staff e-mailed House Information Resources (HIR), instructing
    them to make the Orange County and INS computer tapes available
    to the Minority (a copy of the e-mail is sent to Minority
    staff.) The next day, on June 19 th, Majority staff
    countermanded its instructions to HIR to make the Orange County
    and INS computer tapes available to the Minority. Minority
    staff was not informed.
        On June 23rd, Minority staff contacted HIR to arrange
    access to the Orange County and INS computer tapes. At that
    time, HIR advised Minority staff that the Majority had given
    instructions not to give the tapes to the Minority. That same
    day, the Majority staff director confirmed that the Minority
    could not have access to the data unless the Ranking Minority
    Member signed a confidentiality pledge on behalf of himself and
    his staff.

    E. The Majority Reviewed Materials Provided To The Committee Under Seal
                         Without Notifying The Minority

        The Committee received sealed materials from the
    organizations Dump Dornan and Naturalization Assistance
    Services (NAS) pursuant to Contestant's subpoena. The Majority
    reviewed those materials without providing notice to the
    Minority.

       F. The Discovery Process Has Been Unfair To Congresswoman Sanchez

        The Majority permitted Contestant Dornan to issue subpoenas
    for more than two months after his discovery period expired,
    then cut off discovery for Mrs. Sanchez without having notified
    her that her discovery ever began.
        Specifically, Contestant Dornan's discovery period expired
    on April 9, 1997--30 days after the Majority required Mrs.
    Sanchez to answer Contestant Dornan's Notice of Contest.
    Despite several motions to quash asserting that Contestant
    Dornan's discovery period had expired, the Majority remained
    silent, and permitted Contestant Dornan to issue subpoenas for
    two more months. Finally, on June 12th, Chairman Thomas and
    Chairman Ehlers wrote to Mr. Gejdenson and Mr. Hoyer stating
    that Contestant Dornan's discovery ran from March 10th, to
    April 9th, and that Sanchez'' discovery ran from April 10th to
    May 10th.
        Therefore, the Majority extended Contestant Dornan's
    discovery period two months beyond the appropriate end date,
    but ended Mrs. Sanchez'' discovery period before it ever began.

    G. The Majority Provided Information To The INS, But Concealed It From
                                  The Minority

        Eleven of the Majority's information requests included
    materials for INS to review. None of those materials were
    provided to the Minority. In fact, the requests often were
    crafted to prevent the Minority from determining what the
    Majority wanted INS to look at.
        At the Committee meeting on September 24th, Chairman Thomas
    agreed to give the Minority the materials he gave the INS. As
    of the date this report was filed, the Minority still has not
    received the materials, or been apprised when the Minority
    would receive them.

    H. The Majority Made Secret Arrangements With The California Secretary
                                    Of State

        Chairman Thomas asked California Secretary of State Bill
    Jones to verify the Majority's preliminary findings regarding
    the citizenship status of registered voters in the 46 th
    Congressional District. The Minority was not advised of the
    request until Secretary Jones insisted the Minority be given
    notice and an opportunity to participate.
              On September 15th, Chairman Thomas asked Jones to
            ``verify'' the citizenship status of certain registered
            voters in the 4th Congressional District. The Minority
            was not notified of the request or provided with the
            list of registered voters.
              On September 18th, Secretary Jones advised Mr. Thomas
            that he would assist the Committee only if: (1) the
            Minority were advised of the request and kept informed
            of the results of his efforts; and (2) the Privacy Act
            permitted him to do so.
              On September 22nd, Mr. Thomas provided Secretary
            Jones with an opinion from the House General Counsel
            concluding that the Privacy Act did not apply to
            information provided to Secretary Jones by Congress.
            The Minority received a copy of the letter--``the
            Minority's first notice that Mr. Thomas had requested
            Secretary Jones'' help.
              The Majority negotiated a Memorandum of Understanding
            with Secretary Jones concerning his handling of the
            Committee's information without consulting the Minority
            or providing the Minority a copy.
              Majority staff scheduled a meeting with Secretary
            Jones and INS to finalize arrangements for Secretary
            Jones to verify the Majority's analysis. The Majority
            did not invite the Minority, and canceled the meeting
            when the Minority demanded to attend.

         I. The Majority Failed To Consult The Minority Before Issuing
                                Interrogatories

        On September 24th, the Committee resolved to permit the
    Chairman to issue interrogatories in consultation with the
    Ranking Member. On October 1, the Majority issued
    interrogatories without any prior consultation with the
    Minority regarding Majority interrogatories.

             III. The Majority Has Consistently Misapplied the FCEA

        The Federal Contested Election Act 6 provides a
    procedural framework the Committee must follow in its
    consideration of an election contest. In several instances in
    the course of this contest, the Committee deviated from the
    requirements of the Act.
    ---------------------------------------------------------------------------
        \6\ 2 U.S.C. Sec. 381 et seq.
    ---------------------------------------------------------------------------
        On February 26, 1997 the Task Force met to consider the
    Contestee's Motion to Dismiss. By a vote of two to one, the
    Task Force adopted a resolution: ``Resolved, the Committee will
    postpone the disposition of Contestee's Motion to Dismiss until
    a hearing on the merits.'' The event that the Majority referred
    to as a ``hearing on the merits'' was a field hearing which the
    Committee set for April in Orange County, California.
        Under the FCEA, the Contestant may seek discovery for a
    period of thirty days after the time for the filing of the
    answer by the Contestee has expired.\7\ If the Committee
    postpones the disposition of a Motion to Dismiss ``until the
    hearing on the merits'', the Contestee's answer is due within
    ten days of notice of such action.\8\ Therefore, by the
    Majority's interpretation, the discovery period for Mr. Dornan
    began ten days from this February 26th hearing.
    ---------------------------------------------------------------------------
        \7\ 2 U.S.C. Sec. 386(c)(1).
        \8\ 2 U.S.C. Sec. 384(d).
    ---------------------------------------------------------------------------
        This action constituted a misapplication of the statute.
    The statute provides that the parties' discovery period is
    triggered if a Motion to Dismiss is postponed ``until the
    hearing on the merits.'' \9\ However, the term ``hearing on the
    merits'' refers to the hearing described in section 392 of the
    Act, which states that ``contested election cases shall be
    heard by the Committee on the papers, depositions, and exhibits
    filed with the Clerk. * * *'' \10\ The Section 392 hearing is
    the final hearing ``on the merits'' of the contest heard after
    all evidence is gathered. The ``field hearing'', in contrast,
    does not trigger any other actions under the Act and therefore
    the Committee deviated from the Act by allowing discovery to
    begin at this point.
    ---------------------------------------------------------------------------
        \9\ 2 U.S.C. Sec. 384(d).
        \10\ 2 U.S.C. Sec. 392(a).
    ---------------------------------------------------------------------------
        The Committee also acted improperly after Contestee Sanchez
    filed a Second Motion to Dismiss in response to a modified
    Notice of Election Contest filed by Contestant Dornan. The
    Committee did not meet and dispose of this second motion.
    Instead, the Task Force Chairman unilaterally dictated that the
    second motion also be postponed until the ``hearing on the
    merits''. This action was improper because it was not the
    ``Committee'' taking action on the Motion, as required by the
    Act.
        The procedures for resolving a contest other than by
    granting a motion to dismiss are laid in section 392 of the Act
    and set forth the requirements for each side to present its
    evidence before the Committee. The Committee must hear the
    contest on the ``record'' of the case.\11\ The record includes
    the ``papers, depositions, and exhibits that have been filed
    with the Clerk.\12\ The ``papers'' shall include the
    Contestant's brief, along with appendix; the Contestee's brief,
    with appendix, and the reply brief of the Contestant.\13\ These
    briefs and appendices are to be produced according to a strict
    time frame laid out in the Act. The Contestant's brief is due
    45 days after the discovery period for both parties has
    ended.\14\ The Contestee's brief is due 30 days after the
    service of the Contestant's brief.\15\ The Contestant's reply
    brief is due within ten days of service of the Contestee's
    brief.\16\ In deciding the case, the Committee must consider
    portions of the record presented to the Committee and included
    in the appendices to each parties' brief.\17\ These steps are
    not discretionary under the Act, although the Contestant may
    waive his right to a reply brief, and the Committee must
    consider these materials after giving the parties' the
    opportunity to produce such materials.
    ---------------------------------------------------------------------------
        \11\ 2 U.S.C. Sec. 392(a).
        \12\ Id.
        \13\ 2 U.S.C. Sec. 392.
        \14\ 2 U.S.C. Sec. 392(b).
        \15\ 2 U.S.C. Sec. 392(e).
        \16\ 2 U.S.C. Sec. 392(f).
        \17\ 2 U.S.C. Sec. 392(b), (c).
    ---------------------------------------------------------------------------
        Any disposition of an election contest other than in
    accordance with the above schedule and process would be
    contrary to the Act.\18\ Yet, the Majority appeared to be
    contemplating a process of disposing of this contest that would
    have been contrary to these requirements. The Majority failed
    to compel the Contestant to submit a brief within the statutory
    time limits. Although they were clearly short of what is
    required by the Act, Contestant referred to his disparate
    submissions in the aggregate as a ``brief''. The Majority
    accepted this description and essentially waived the
    requirement that Contestant submit a formal brief with
    appendices. The Committee then required Contestee Sanchez to
    file a brief in response to Contestant's bald allegations, as
    if Contestant had filed a ``brief''. Thus, the Committee never
    afforded her the opportunity to examine the evidence of the
    charges against her.
    ---------------------------------------------------------------------------
        \18\ Section 394(c) the Act grants the Committee the power to
    extend time limitations. Thus, the Committee can call for the beginning
    of the briefing schedule at any time, but it cannot shorten the time
    period for providing such briefs and cannot deny the other party the
    right to present briefs as called for in the Act.
    ---------------------------------------------------------------------------

                  IV. Majority's Misinterpretation of Evidence

        The goal of determining whether non-citizens voted is, of
    course, laudable and important. What is not justified, however,
    is undertaking a faulty process using inadequate data, and then
    grossly mischaracterizing the result. As explained below, the
    Majority conducted an analysis that was faulty and that led
    them to a number of votes that they characterized as ``illegal
    non-citizen voters.'' Yet this number unquestionably contains
    hundreds of voters who were clearly citizens at the time they
    voted. The Majority would not deny this `` but they are willing
    to obfuscate it. In addition, the Majority is at best sloppy
    and at worse slanderous when it claims that ``two-thirds'' of
    Ms. Sanchez's victory margin was due to illegal non-citizen
    voters. Putting aside that many of the voters in this group
    were citizens, we do not know, and never will know for whom
    they voted. They did not come out of the margin of victory;
    these votes can only fairly be apportioned against both
    candidates.

     A. The Majority's Own Analysis Shows Between A Quarter And A Half Of
      The 624 Individuals Designated ``Documented Evidence Of Illegal Non-
       Citizen Voting'' Were In Fact U.S. Citizens At The Time They Voted

        The Majority stated that its analysis generated 624 cases
    of ``Documented Evidence of illegal non-citizen voting.'' To be
    charitable, this is a gross mischaracterization. Many
    individuals in this category were U.S. citizens at the time
    they voted in the 1996 election, although they registered to
    vote in advance of being sworn in as U.S. Citizens. Some of
    these ``non-citizens'' became naturalized citizens more than 20
    years ago. Nonetheless, the Majority included both newly and
    long-time naturalized U.S. citizens in the category ``illegal
    non-citizen voting.''

      B. The Majority's Process Of Assembling And Analyzing Evidence Was
                    Fundamentally Flawed From The Beginning

        The Majority analysis began with a shotgun approach,
    sweeping into its ``suspect voter'' category over 500,000
    registrant name matches. The Majority attempted to refine the
    number by including only 46th Congressional District registrant
    names to be matched with INS files. This resulted in 136,000
    matching names, which is more ``suspect voters'' than actual
    voters in the 46th Congressional election in 1996. This again
    suggests that the foundation upon which the Majority analysis
    proceeded was fundamentally flawed.
        INS data provided to the Committee came in two forms--the
    electronic results of 20 separate requested database searches,
    and the paper results of manual searches of over 8,000 INS
    files in dozens of INS offices throughout the country. The INS
    provided summary worksheets as well as 3,700 signature sheets
    for the Committee. The Committee used these sheets to compare
    to Orange County information and registration affidavit
    signatures, as well as to other lists received by the
    Committee.
        The INS informed the Committee of the difficulty of using
    INS data to prove citizenship status. For example, in a May 1,
    1997 letter to Chairman Thomas, the INS stated:
              INS databases are not organized for this purpose and
            there are inherent limitations on their use to match
            against lists of registered voters. For example, with
            only two common identifiers--name and date of birth--
            there is a potential for false `matches' and duplicate
            matches for a single registered voter. Also the INS
            does not typically update files of individuals after
            they are naturalized. In addition, automated databases
            do not necessarily contain records pertaining to
            individuals who naturalized prior to 1973. Therefore,
            records of long-time naturalized citizens would not
            necessarily be easily retrievable from INS databases.
            Finally, the INS does not, of course, maintain records
            on native-born United States citizens.
    In its May 21, 1997 letter to Chairman Thomas, the INS stated:
              We emphasize to the Committee that, in light of the
            methodology employed--conducting matches based only on
            name and date of birth--and the organization of INS's
            databases, the data on these tapes do not represent the
            number of illegal voters or registrants in Orange
            County, nor should it be inferred that any particular
            named individual on this tape has voted or registered
            to vote illegally. In fact, matches may occur with
            individuals who reside outside the county or the state
            of California. Since INS data have been assembled in
            many places over many years in different formats, a
            simple electronic match will not produce completely
            reliable data.
              * * * * * * *
              For example, as you know, native-born U.S. citizens
            do not appear in INS records. Any such citizens,
            however, who have registered to vote in Orange County
            may be placed on the ``match'' list if they share a
            surname and date of birth with a non-citizen whose
            records appear in CIS or NACS.
    Throughout the remainder of its correspondence, the INS stated:
              While the INS review of its paper files increases the
            reliability and usefulness of the immigration and
            citizenship status information being provided, paper
            file review alone cannot establish whether an apparent
            match between California and INS records does indeed
            relate to the same individual.
        As demonstrated above, INS cautioned the Committee from the
    outset, and throughout the Committee investigation, that INS
    records (both electronic and paper files) were not set up or
    maintained in a way that the records could be effectively used
    to confirm the naturalization status of voter registration
    applicants in Orange County (or anywhere else), and in many
    cases such records were out of date, incomplete, or no longer
    available. Ignoring that caveat, the Majority proceeded to
    analyze the information provided by the INS, which resulted in
    the Majority's claim that it can document 624 instances of
    ``illegal non-citizen voting.''
        Other material analyzed by the Majority (so far as the
    Minority has been made aware) falls into a number of
    categories: (1) the Lever list of names; (2) the Committee
    lists of names; and (3) other lists of names.
        Rosalyn Lever is the Registrar of Voters for Orange County,
    California. The ``Lever List'' represents 124 U.S. citizens who
    cast ballots in the 1996 election. These ballots consist of 98
    absentee ballots, 22 double voted ballots, and 4 ballots from
    improper addresses. These ballots were then delivered to the
    Registrar of Voters by various individuals in the normal course
    of the election. However, California law requires that absentee
    ballot delivery may be effectuated only by certain means or
    persons. In the case of 90 of the absentee ballots, it appears
    that delivery was made by the wrong person. When an absentee
    ballot is delivered by the wrong person, the Registrar can
    remedy the non-compliant delivery by disallowing the absentee
    ballot. Registrar Lever testified at the Committee field
    hearing in California, however, that delivery would ordinarily
    be treated as a procedural deficiency (as opposed to a
    substantive violation), and in the absence of any other
    extenuating circumstances, she would count such absentee
    ballots to recognize voter intent. However, given the
    circumstances attendant to this contested election, she
    indicated that she would disallow such absentee ballots, if
    called upon to do so.
        The Committee lists represent numerous INS responses to
    Majority requests for data matches using Orange County
    registrants' names, and in some cases data matches using names
    from other lists. The underlying premise of the Committee lists
    is that everyone swept onto the list is a ``suspect illegal
    non-citizen voter'' until proven otherwise to the satisfaction
    of the Majority.
        Other lists included: 19,000 alien registration numbers
    obtained by the Committee from the Naturalization Services
    Corporation, for which the INS provided matching information
    fromits database; individuals who claimed a non-citizenship
    exemption from jury duty from the Orange County Superior Court; names
    provided by the Contestant's attorney; and persons who voted in the
    46th Congressional District from Secretary of State Bill Jones. The
    Minority was not made aware of the existence of any other lists or
    information used in the Majority analysis.

        c. a ``guilty until proven innocent'' methodology governed the
                      majority's analysis of the evidence

        Starting from the assumption that anyone who had a name and
    date of birth match with an INS record was a ``suspect voter,''
    the Majority proceeded to weed out only those registrants whose
    citizenship status the Majority could verify. This resulted in
    an inflated pool of ``suspect voters'', largely consisting of
    persons for whom incomplete or inaccurate INS data could not
    confirm their citizenship status. Hence the Majority premise
    was ``guilty until proven innocent''. This, of course, left
    anyone for whom the Majority did not have proof of citizenship
    in the ``suspect voter'' category, unless some other obvious
    factor provided a basis for elimination (e.g., death). The INS
    data, which the INS indicated were not set up to be used for
    such comparisons, were not up to the task carried out by the
    Majority. Still the Majority continued the sorting process on
    the presumption that even a flawed match meant that the
    individual remained in the ``suspect voter'' pool, until proof
    of citizenship could be established.
        Based upon a chart created by the Majority and used at the
    Committee meeting called to dismiss the contest (and not seen
    by the Minority before that meeting), the Majority somehow
    winnowed its inflated ``suspect voter'' list down to a pool of
    7,841 individuals. The Majority then designated 2,493 of them
    as ``Suspect Registrants''.
        At this point, the Majority finally addressed the key issue
    to the election contest pending before the Committee. The
    Majority eliminated 1,718 names of persons who did not vote in
    the 1996 election, and who could not have affected the outcome.
    All of the artificially inflated numbers previously reported by
    Members of the Majority included persons who could not possibly
    have affected the outcome of the election. This left, by the
    Majority's calculation, 820 individuals who were in the
    category of ``Suspect Registrant voted in the November 1996
    Election.''
        Of the 820 ``Suspect Registrant(s)'', the Majority chart
    again summarily declared that the Majority had sufficient
    evidence to place 624 ``Suspect Registrant(s)'' in the category
    of ``Documented Evidence of illegal non-citizen voting'',
    leaving the balance of 196 in the category ``Circumstantial
    Indication of illegal non-citizen voting.'' The Majority then
    added the 124 absentee and other suspect ballots on the Lever
    list described above, and declared that there were 748 persons
    for whom the Majority had ``Documented Evidence of Illegal
    Voting''.
        This number is flawed, just as the entire process of
    analysis was problematic from the beginning. First, as
    presented at the Task Force meeting, the Majority committed an
    arithmetic error in calculating their final number. 2,493 minus
    1,718 leaves 775, not 820, as the Majority chart shows. Thus
    the Majority erroneously inflated its final number of alleged
    illegal votes by 45. But more troubling is the fact that the
    Majority has summarily declared that individuals are illegal
    non-citizens voters before the INS had even completed providing
    the Committee with signatures to match against Orange County
    registrant affidavit signatures.

       d. the majority's faulty analysis grossly inflated the number of
                       individuals on their suspect list

        As mentioned earlier, many individuals termed ``illegal
    non-citizen voters'' were U.S. citizens when they voted in
    1996, although they registered to vote in advance of being
    sworn in as U.S. citizens. There is no question about their
    citizenship status--and the Majority would have to agree--these
    individuals were citizens when they voted. Characterizing them
    as ``illegal non-citizen voters'' is simply wrong. There are
    several other defects in the Majority analysis discussed below.
        First, the Committee's list of ``suspect'' voters who
    allegedly ``match'' INS files likely includes names whose
    alleged ``match'' is a person of a different gender. For
    example, for 46th District voter Rose H______, the Committee's
    INS ``match'' is Rosendo H______; for voter Phuoc N______, the
    Committee's INS ``match'' is Mai N______; for voter Christine
    K______, the Committee's INS ``match'' is Young
    K______.19 To say the least, this raises serious
    doubts about whether the Committee should consider these voters
    ``suspect''. These individuals may have become ``suspect''
    because of the flawed methodology in the initial Committee
    requests to the INS.
    ---------------------------------------------------------------------------
        \19\ The individuals in each pair are of the opposite gender.
    Throughout this Minority report the last names of all individuals whose
    votes or citizenship status the Committee examined are represented by
    the first letter of their last name followed by a ``______'', or simply
    a ``______'', to protect the privacy of these individuals.
    ---------------------------------------------------------------------------
        Second, the Committee's list of illegal ``suspect'' voters
    potentially contains a significant number of names whose Orange
    County Voter Records indicate that they were born in the United
    States--regardless of what the INS records say (in fact, the
    INS itself says that its records are totally unreliable for the
    purpose for which they are being used by the Committee). For
    example, on the Committee's list, an actual voter designated
    here as Voter X was born in Canada in the Committee's INS
    ``match'', but in New York in Orange County records; Voter Y
    was born in Mexico in the Committee's INS ``match'', but in
    Colorado in Orange County records; Voter Z was born in Germany
    in the Committee's INS ``match'', but in Illinois in Orange
    County records. In several of the Committee's matches, both INS
    data and Orange County data reported U.S. birth, e.g., Voter A
    was born in ``state'' (meaning within the U.S.) in the
    Committee's INS ``match'', and in Texas in Orange County
    records. Can the Committee fairly include any of these names on
    its ``suspect'' list?
        Third, the Committee may have added to its ``suspect'' list
    many names despite the fact that these persons in the INS
    database have a different first name than their alleged
    ``match'' from the Orange County Voter Records. These names
    should not be counted in determining a final number of improper
    votes. For example, for 46th District voter Cesar R______, the
    Committee's INS ``match'' is Noel R______; for voter Leonarda
    G______, the Committee's INS ``match'' is Raquel G______; for
    voter Lucus T______, the Committee's INS ``match'' is Hector
    T______.
        Fourth, dozens of the names identified by the Committee
    from the INS databases have different middle names or initials
    than their alleged ``match'' from the Orange County Voter
    Records. These names should not be counted in determining a
    final number of improper votessolely on that basis. For
    example, for 46th District voter Maria Y. ______, the Committee's INS
    ``match'' is Maria E. ______; for voter Robert C. ______, the
    Committee's INS ``match'' is Robert W. ______; for voter Cecile V.
    ______, the Committee's INS ``match'' is Cecile P. ______.
        Fifth, the Committee may be carrying on its ``suspect''
    list voters who, upon further review of INS records, would be
    shown to be citizens because they had American parents, were
    naturalized, or were citizens by birth. Clearly these
    individuals should be removed from any suspect list.
        Sixth, many voters on the Committee's ``suspect'' list
    probably registered prior to November 1994, and some may have
    been registered since 1956, even though they may have
    registered before being naturalized. Should the Committee count
    these U.S. citizens in its final number of improper votes when
    they have been naturalized citizens for years?
        Finally, dozens of the names on the Orange County Voter
    Records match names of individuals who have no INS records. The
    Committee may be assuming that they were not citizens at the
    time they registered and voted. That is not a fair or
    reasonable assumption.
        In sum, a large number of the 624 individuals on the
    ``Documented Evidence of illegal non-citizen voting'' list
    cannot be properly termed ``illegal non-citizen voters''--that
    is, people who were not American citizens on November 5, 1996.
    In fact nothing definitive can be concluded about most of these
    people with respect to their citizenship status and right to
    vote, either because the INS has not been able to locate a
    signature in its records that can be compared to the signature
    provided by the Orange County Registrar, or because the INS has
    not located in its various computer databases and paper files a
    naturalization date for these individuals. Without a legible
    signature from both agencies, a signature comparison cannot be
    conducted to determine whether the voter in Orange County is
    likely the same person as the one in the INS file. Without a
    naturalization date, it is impossible to determine when or if
    the ``suspect voter'' became a citizen.
        Does the failure of the INS to provide a signature and/or
    naturalization date imply that the voter in question is in the
    process of naturalizing but has not yet become a citizen, has
    never applied for naturalization, has been rejected for
    naturalization, or has illegally resided in the United States
    and through lax registration procedures or bureaucratic
    carelessness managed to vote? The answer is ``no.'' The
    Majority knows this, though it conveniently omitted this
    crucial qualification to inflate its final number. Instead the
    Majority has apparently assumed the absence of these two pieces
    of INS data means that these persons have not naturalized yet,
    and may well have been illegal aliens on November 5, 1996, and
    thus can be confidently classified as ``non-citizen voters.''
        The crucial question, then, is what is the status of these
    individuals if a significant number of them are not ``illegal
    non-citizen voters'? The crucial answer that every Member of
    this body must know before casting a vote on a resolution that
    claims ``widespread voter fraud'' is that they could just as
    easily be citizens of the United States. In fact, it could just
    as easily mean that the voter in question, despite a foreign
    sounding name that suggests he/she was born outside the United
    States, was born in the United States and has never had any
    reason to apply for citizenship with the INS. If a person was
    born in the United States, the INS would not keep the kind of
    files on him/her that the Majority has relied upon in its
    investigation. The INS is not a central repository or library
    that keeps track of every United States citizen either born in
    this country or naturalized. It does not issue U.S. passports
    or grant visas to Americans traveling to foreign countries. As
    paradoxical as it may seem, a person's failure to appear in INS
    records may constitute the strongest evidence the person is a
    U.S. citizen.
        Consider the following examples that illustrate why the
    Majority figure should be greeted with great skepticism and the
    charges of fraud in the resolution be removed. The names have
    been blanked out and details altered to protect the privacy of
    the individuals.
                Example 1
        One Mario R______, born in 1943, may appear on the
    Majority's suspect list because (1) Mario R______ registered in
    Orange County in 1992 and voted in the 1996 election; (2)
    generated 7 ``matches'' from the INS when the Majority ordered
    the INS to run the Orange County registration list against its
    various databases; and (3) had an Orange County signature that
    did not match 4 of the 7 signatures the INS had on file with
    which timely naturalization dates were affiliated. The Majority
    would conclude from this that since there was no signature
    match with any of the 4 different Mario R______ signatures on
    file, Mario R______ must be one of the three remaining Mario
    R______s in the INS files `` all born outside of the U.S.--for
    whom the INS cannot find a signature, but who naturalized after
    November 5, 1996. In fact it is entirely possible that the
    Mario R______ in Orange County is not any of the 7 Mario
    R______s in the INS databases because he is a first generation
    American citizen who was born to Cuban immigrants, and thus had
    no need to apply for citizenship at the INS. Or one of the INS
    files may be his simply because in 1990 he used his own U.S.
    citizenship to sponsor the entry of a relative living in
    another country.
        As the INS explained to the Majority, ``(N)ative-born U.S.
    citizens do not appear in INS records. Any such citizens,
    however, who have registered in Orange County may be placed on
    the 'match' list if they share a surname and date of birth with
    a non-citizen whose records appear in'' INS databases'assume
    that 10 matches result from a single name on the Orange County
    voter rolls' it could be that none of the 10 identified INS
    records corresponds to the person on the OC list because the OC
    voter was born in the United States. Such a ``matched''
    individual may unfairly be placed under suspicion as an
    unauthorized voter'.'' 20
    ---------------------------------------------------------------------------
        \20\ Excerpts from INS letter to Bill Thomas dated May 21, 1997.
    ---------------------------------------------------------------------------
                Example 2
        Similarly, a person by the comparatively uncommon name Huy
    P, born in 1968, who registered in Orange County in 1986 and
    voted in 1996, may generate a single INS match whose signature
    matches the one in OC, but for whom no naturalization date can
    be found. The Majority would conclude that since the Huy
    P______ signature in the INS is the same as the Huy P______
    signature in Orange County, and yet has no naturalization date
    in the INS recordcontaining the signature, it must mean he has
    yet to become a United States citizen and perforce should not have
    voted. In fact Huy P______ may have generated an INS record because the
    INS granted him a certificate of citizenship in 1982 when both his
    foreign born parents naturalized. Or Huy P______ may have received a
    certificate of citizenship from the INS because he was born overseas to
    a parent who was born in the United States.

    Example 3

        Finally, one Daniel G______, born in Mexico in 1912, may
    generate 3 separate INS files, all of whose birth dates match
    the Orange County birth date, 2 of whose naturalization dates
    fall between July 1, 1982 and October 5, 1996, but whose
    associated signatures do not match the Orange County
    registration signature. The third file may contain a signature
    match, but have no naturalization date. The Majority would
    conclude that Daniel G______ was not a citizen on election day
    1996 and should not have voted. In fact Daniel G______ may have
    immigrated to this country as a young boy in 1918, become a
    citizen in 1953 while living in New York City, moved to Orange
    County in 1977 and registered to vote in 1978, and voted for
    Mr. Dornan in every race he has entered since 1980. Because of
    the blank date, the Majority presumption seems to be that the
    Daniel G______ has not naturalized and thus was not a citizen
    on election day. In fact, it could mean that Daniel G______
    naturalized long before the INS developed its computer
    databases. The fact that the INS has no naturalization date
    would mean that its New York City office misplaced his paper
    file years ago.
        The INS cautioned the Committee about this possibility
    early in the Majority's review of files stating: ``(A)utomated
    databases do not necessarily contain records pertaining to
    individuals who naturalized prior to 1973. Therefore, records
    of long-time naturalized citizens would not necessarily be
    easily retrievable from INS databases. 21
    ---------------------------------------------------------------------------
        \21\ Excerpt from INS letter to Bill Thomas dated May 1997.
    ---------------------------------------------------------------------------

    E. The Minority's Analysis Is Based On ``Innocent Until Proven Guilty''
                                  Methodology.

        Owing to the fact that the Task Force Majority repeatedly
    ignored suggestions by the Minority to combine staff resources,
    develop a mutually acceptable research protocol, and analyze
    all the INS and Orange County data in a spirit of cooperation
    and bipartisanship, the Minority was left with no option but to
    conduct a parallel analysis of the same materials, stretching
    both staffs' resources and wasting as much as $1 million in
    taxpayer money.
        Unlike the Majority staff's premise, which imprudently
    assumed every Orange County registrant with a corresponding INS
    file was an ``illegal non-citizen'' until new information
    emerged indicating otherwise, the Minority assumed that
    apparent matches between the Orange County registration list
    and INS databases did not impeach the citizenship status of
    anyone until all the electronic and paper data provided by INS
    and Orange County officials had been meticulously organized and
    analyzed.
        To that end the Minority prepared a ``blended'' computer
    database that could be easily updated. The importance of an
    updatable database cannot be overstated because the INS
    regularly delivered to both staffs hundreds of pages of new
    data gathered by field agents across the country from files
    that were often many years old.

                            F. The Minority Protocol

        The Majority confidently asserted, when it announced its
    plan to compare OC records with INS databases, that in cases
    where a suspect's first name, last name, middle initial/name,
    and date of birth in Orange County matched those same criteria
    in an INS database, odds were ``they had their man.'' After
    all, what are the chances of more than one person sharing such
    specific criteria?

    Multiple Matches (when matches are NOT ``matches'')

        This entire investigation has depended on two enormous
    databases: (1) the Orange County Registrar's list, which
    includes approximately 176,000 registrants in the 46th; and (2)
    the various INS databases, which contain tens of millions of
    people. Size alone all but guarantees numerous cases in which a
    single person in Orange County will generate many ``matches''
    with INS records, all representing different people who just
    happen to share the same name and birth date. For example, a
    person with the initials ``M.H.'' who registered in Orange
    County generated 8 distinct INS matches, any or none of whom
    may be the ``suspect registrant''.
        To the dismay of the Majority, which promised that
    comparing the two databases would resolve the contested
    election swiftly, elegantly, and accurately, ``matches'' like
    the one just cited were more the rule than the exception. The
    bottom-line is that there is no way to tell if the OC person is
    likely the person in the INS databases unless further steps are
    taken, which the Minority has been carrying out since last June
    and revising as the Majority has requested new information from
    the INS, Orange County, and the California Secretary of State.
    This has included signature samples and the list of 4,761
    ``suspect registrants'' the Majority sent to Bill Jones last
    November and which the Minority treated as the total universe
    of suspect voters when it received a copy on November 4, 1996.
                Step 1: Creating the master database
        The Minority established a master database consisting of
    the following elements:
              (1) the first names, last names, middle initial/
            middle names, and dates of birth of Orange County
            registrants who had a corresponding INS file;
              (2) the Orange County affidavit number and the INS
            alien number associated with each person in the
            database;
              (3) all naturalization dates the INS could find for
            the people in question, including the naturalization
            dates in INS records that the Majority omitted from its
            initial instructions to INS because the dates indicated
            they had naturalized before registering. Had it not
            been for the Minority's protests, the Majority would
            have excluded these essentialrecords from its analysis.
    Make no mistake about it: if there is any doubt the Majority has
    employed a presumption of guilty until proven innocent, it should be
    dispelled by the fact that the Majority did not want to see INS records
    that indicated the person in question had naturalized before
    registering. As the INS stated to Chairman Thomas in correspondence
    dated May 21, 1997:
                      Because Subpoena 1 instructs INS to report
                    only those records without a naturalization
                    date or showing a naturalization date after the
                    date of registration, INS dropped * * * records
                    showing timely naturalization. This instruction
                    reduces opportunities to recognize false
                    matches. Assume that 10 matches result from a
                    single name on the Orange County voter rolls,
                    with 5 showing naturalization before the date
                    of voter registration and 5 showing a later
                    date of naturalization or none at all. Pursuant
                    to the instructions, INS would have omitted
                    from its response to the Committee the 5
                    records of individuals who had in fact
                    naturalized in time. Yet, one of these omitted
                    records could actually correspond to the person
                    who registered to vote in Orange County.
              It was not until the Minority specifically requested
            such information in a letter to Chairman Thomas that
            the Committee took the initiative to obtain the data.
              (4) any hand-written notes from field agents
            reporting cases in which naturalization dates could not
            be found because the file for the person in question
            had been lost;
              (5) the date on which the person registered in Orange
            County; and
              (6) tags for probable signature matches, signature
            mismatches, and indeterminate signature matches in
            cases where both the INS and OC had supplied
            signatures.
                Step 2: Reducing the Database to Voters from the 46th
                        Congressional District
        Since the Task Force's mandate was to uncover instances of
    voter irregularities that may have affected the outcome of the
    election, and not to uncover irregularities among OC
    registrants who did not vote in November 1996, the Minority
    removed from consideration all people in the database who
    registered but did not vote in November 1996. To accomplish
    this, the Minority used paper and computer materials provided
    by the Orange County Registrar of Voters and Secretary of State
    Bill Jones showing which registrants actually voted.
                Step 3: Removing Signature Mismatches and Lost Files
        On the assumption that the Majority would play by the rules
    it promulgated when it ordered INS and Orange County to provide
    signature samples to establish probable matches, the Minority:
              (1) removed from the database the names of all the
            persons whose Orange County registration signatures did
            not match the INS signatures.
              One feature that the Majority has yet to explain, and
            which contributed to the misperception late in 1997
            that as many as 2,474 illegal citizens voted in
            November 1996, is why the Majority asked INS and OC to
            provide signature samples for voters whose first names
            and/or genders in the respective database were
            unmistakably different. The Minority could understand
            if the signature requests had been restricted to
            suspects whose first name as reported by OC was
            slightly different from the first name in the
            affiliated INS file--for example, Maria C______ in
            Orange County v. Marie C______ in INS, or John Q.
            Public vs. John K. Public. But such minor differences
            were joined with major differences for which no logical
            explanation exists and that served only to prolong the
            investigation--for example Gustavo A______ in Orange
            County v. Pedro A______ in INS, or Jorge P______ in
            Orange County v. Alberto P______ in INS.
              Stranger still, the same suspect list contained
            numerous cases in which not only were the respective
            first names different--for example, Ramon A______ in
            Orange County v. Teresa A______ in INS--but the genders
            reported by the two agencies clearly supported the
            distinction: male in OC vs. female in INS.
              On the basis of these undeniable differences in the
            Majority list sent to Secretary Jones, which suggest
            the Majority staff carried out its research in a
            careless and sloppy manner, the Minority has no
            confidence in the accuracy of any ``suspect list''
            created by the Majority. It is possible the Majority
            removed these glaring differences in the Majority's
            final list; then again it is entirely possible the
            Majority did not. In light of the fact that the
            Majority staff has denied the Minority access to the
            list, we have no choice but to conclude the list
            includes these obvious conflicts and cannot be relied
            upon at all.
              (2) removed all people for whom the INS reported it
            could not locate a signature, or whose file the INS had
            lost.
              The Majority will claim that in cases of ``lost
            files'' or ``no INS signatures on file''--and there are
            many--it is justified in classifying individuals as a
            ``Circumstantial Indication of illegal non-citizen
            voter.'' The Majority is trying to have it both ways.
            On the one hand, it is using the INS-OC ``matches''
            that include reasonably complete naturalization data
            for its declared purpose of identifying ``illegal non-
            citizen voters.'' On the other, it is interpreting
            cases where a ``match'' generates incomplete
            naturalization data as evidence that the voter in
            question is not a citizen. To be an accurate test of
            non-citizenship, the process of analysis the Majority
            designed had to yield consistently clear-cut
            naturalization information about each ``suspect
            voter''. The Minority's experience was that the process
            so frequently generated incomplete information that it
            calls into question the integrity of the entire
            process, and hence the accuracy of the final Majority
            number.
                Step 4: Refined Database: Cases of Apparent Signature
                        Matches
        The Minority treated with great seriousness instances where
    Orange County signatures appeared to match INS signatures.
    Short of actually contacting a suspect voter and demandingproof
    of citizenship and date of naturalization, signature comparisons are
    probably the strongest indication of whether an INS record ``belongs''
    to a ``suspect voter''.
        Accordingly, the Minority developed a much smaller database
    consisting only of people whose OC signature appeared to match
    the INS signature.
        Next, the staff compared the naturalization date associated
    with the INS signature with the date on which the person
    registered in Orange County. This procedure removed from
    further consideration anyone whose naturalization date fell on
    or before his/her registration date. In such cases, the
    individuals were eligible to vote on November 5, 1996.
                Step 5: Refined Database: Cases of Apparent Signature
                        Matches where Naturalizations Dates Fell after
                        Registration Dates or after Election Day
        The Minority diligently repeated this systematic protocol
    whenever new INS information arrived, thus keeping the
    following categories up to date:
              (1) Citizen Voters who Naturalized After Registering
              Anyone whose naturalization date fell on or before
            November 5, 1996, but whose registration date preceded
            naturalization, was a U.S. citizen on election day.
            However, the voters may have violated California's own
            registration laws.
              (2) Voters who Naturalized after Registering but
            before Election Day 1996, and Registered before
            Election Day 1994.
              (3) Voters who Naturalized After Election Day.
              Anyone whose naturalization date fell after November
            5, 1996 was not a citizen on election date.
              (4) Anyone for whom the INS could not locate a
            naturalization date we remained silent on, pending
            notification from the INS as to whether a
            naturalization date was likely to be located.
              Once again, the Majority will claim that pending
            receipt of a naturalization date, a shadow of suspicion
            hangs over any registrant/voter falling into this
            category and therefore is ``circumstantially suspect.''
            As the Majority knows, the absence of a naturalization
            date is no indication whatsoever that the person in
            question has not naturalized. All it means is that the
            INS has not yet located the file containing the
            naturalization date of the person, and may never find
            the file because the person naturalized so long ago
            that the record may be lost. Far from suggesting non-
            citizenship, a blank naturalization date may just as
            easily be the strongest evidence the person has been a
            citizen for years.

                G. The Majority Conducted Its Analysis In Secret

        The Majority's decision to reject the Minority's olive
    branch and conduct its investigation in secret, behind closed
    doors, and without any input from the Committee's Minority
    Members, has generated faulty, irresponsible, and unchecked
    findings by the Majority that could have been corrected before
    the Committee went public with its unsupportable claim of
    ``illegal non-citizen voting.'' It is essential to note that
    the Task Force's Minority Member never saw the suspect list,
    nor had the opportunity prior to the final meeting to ask his
    Majority counterparts why they were confident the suspect list
    is sound and unimpeachable. Efforts by the Minority Members and
    their staff to study the list, which both the Task Force
    chairman and the Committee chairman unconditionally promised to
    the Minority following the adoption of the resolution, have
    been blocked by the Majority staff. As matters now stand, the
    Majority has announced an unsupportable number that can only
    have a chilling effect on every recently naturalized citizen in
    the 46th Congressional District, and the nation, who wishes to
    exercise his or her right to franchise.
        If the Majority had cooperated with the Minority during the
    14 month investigation, or invited the Minority to double-check
    its ``suspect list'' before publicly announcing its final
    figure at the meeting, the Minority would have offered the
    preceding critique.
        The Minority's independent analysis demonstrates that the
    Majority is wrong when it describes the 624 voters as
    ``Documented evidence of illegal non-citizen voting.'' For a
    matter as sensitive as the charge that non-citizens cast
    ballots in 1996, terms must be used with great care; in this
    case, the Majority has shown great carelessness.
        If the Majority had executed its analysis as thoroughly and
    exhaustively as its counsel claimed in his testimony, using an
    analytical protocol whose main steps included first keying into
    their database all the hand-written naturalization data that
    the INS provided to the Committee over the course of 8 months,
    second determining if the newly entered naturalization dates
    were subsequent to November 5, 1996, and third establishing a
    probable signature match between a suspect voter's registration
    signature and the INS signature associated with an individual
    who naturalized after the election, they would have discovered
    that only a fraction of the people on the Majority list who
    voted on November 5, 1996 may have been non-citizens at the
    time they voted.
        We use the word may quite deliberately here because short
    of an actual face-to-face interview with the suspect voter,
    nothing can be concluded about a suspect's citizenship status
    and right to vote in the State of California from all the
    materials the Majority demanded from Orange County and INS.
    Even probable signature matches between Orange County
    registration ballots and INS records, which the Minority used
    to reach its estimate, while perhaps the most reliable
    indication of a match, do not constitute proof because of the
    often poor condition of the photocopied signatures received
    from the two agencies, the absence of a forensic hand-writing
    expert to certify what may be a match, and other related
    factors.
        The Minority cannot emphasize enough that it no more
    condones or minimizes the gravity of proven cases of ``illegal
    non-citizens'' voting than the Majority does, be it 500 such
    cases, 100, or 1. The fact remains, however, that nothing in
    the process conducted by theMajority proves widespread voter/
    registration fraud, and certainly nothing coming close to the 748 votes
    they claim contributed to Congresswoman Sanchez's victory. Furthermore,
    the Majority grossly mischaracterizes and slanders Ms. Sanchez's
    election by suggesting that the ``illegal'' votes they have identified
    came out of her margin of victory. We do not know for whom any
    ``suspect'' voters voted. The Majority cannot present a shred of
    evidence that would support such an irresponsible characterization.

        V. The Majority Did Not Follow Long-Standing Committee Precedent

        A. The Majority Ignored Committee Precedent By Failing to Grant
         Contestee's Motion to Dismiss At The Beginning of the Contest

    1. The Burden of Proof Lies with the Contestant

        The burden of proof in all stages of an election contest
    lies with the contestant. This placing of the burden is, of
    course, consistent with, and a product of, the very fundamental
    deference paid to election results and the authority of states
    to administer elections. That the burden lies at all times with
    the contestant has, therefore, been made clear in the
    precedents of the House: ``Under [the FCEA], the burden of
    proof is on the contestant to present sufficient evidence, even
    prior to the formal submission of testimony, to overcome the
    motion to dismiss.'' 22
    ---------------------------------------------------------------------------
        \22\ House Practice.--A Guide to the Rules, Precedents, and
    Procedures of the House, Wm. Holmes Brown, 104th Congress, 2d Session,
    U.S. Government Printing Office (1996) at 462, citing, Deschler's
    Precedents Ch. 9 Sec. 35.7 (``Under the new contested election statute,
    a contestant has the burden of resisting contestee's motion to dismiss,
    prior to the submission of evidence and testimony, representing
    sufficient evidence that the election result would be different or that
    the contestant is entitled to the seat.'')
    ---------------------------------------------------------------------------
        That the burden of proof lies with the contestant is
    perhaps most significantly delineated in the seminal precedent
    Tunno v. Veysey,23 an election contest out of
    California, which was the first contested election decided
    under the FCEA with a Report written by many of the authors of
    that Act. In Tunno, a unanimous Committee on House
    Administration stated that ``[u]nder 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 of evidence to justify his
    claim to the seat in order to overcome the motion to dismiss.''
    24 Mr. Dornan had the burden of overcoming the
    grounds in Ms. Sanchez's motion.
    ---------------------------------------------------------------------------
        \23\ H.R. Rep. No. 92-626 (1971).
        \24\ Id. at 3; see also, Wilson v. Hinshaw, H.R. Rep. No. 94-761 at
    3 (1975) (contestant has burden of proof that facts alleged occurred
    and that such facts have changed the outcome of the election); Chandler
    v. Burnham, H.R. Rep. No. 73-1278 (the burden of coming forward with
    evidence to meet or resist presumptions in favor of election results
    rests with the contestant) (discussed in 2 Deschler's Precedents, Ch.
    9, Sec. 47.4 (1977)). While there has been virtually no disagreement
    that the burden of proof must always lie with the contestant, there has
    been some partisan disagreement as to the degree of proof required at
    the motion to dismiss stage. See, e.g., Anderson v. Rose. H.R. Rep. No.
    104-852 at 7 (1996), and citing Paul v. Gammage, H.R. Rep. No. 95-243
    at 7, 9 (1977) (Republicans and Democrats disagreeing as to degree of
    ``particularity'' required in contestant's pleading).
    ---------------------------------------------------------------------------

    2. The Task Force Did Not Consider the Credibility of Contestant's
            Claims

        In ruling on Contestee's motion to dismiss, the Committee
    should not have simply assumed that Mr. Dornan's allegations
    were true. Instead, the Committee should have evaluated the
    ``credibility'' of Mr. Dornan's allegations in determining
    whether the allegations and proof offered were sufficient to
    overcome the presumption that the state electoral result should
    stand and the clear precedent that, in the absence of
    substantial preliminary proof of misconduct, the contest
    proceedings should have ended with Contestee's the Motion to
    Dismiss.25 In some recent election contests, there
    have been disputes as to whether a motion to dismiss should be
    considered under a standard analogous to a motion to dismiss
    pursuant to Federal Rule of Civil Procedure (FRCP) 12(b)(6) or
    under a FRCP 56 motion for summary judgment standard. Under the
    former standard, all facts as alleged by the claimant are
    assumed to be true and if even after such an assumption the
    claimant has not made a legally cognizable claim, the matter is
    dismissed.26 Under FRCP 56, in contrast, the court
    will rule against the claimant and end the case unless the
    claimant has put forth an adequate and sufficient factual basis
    for continuing the dispute.27
    ---------------------------------------------------------------------------
        \25\ See Rose, supra, at 6-7; Tunno, supra, at 3.
        \26\ See Fed. R. Civ. P. 12(b)(6).
        \27\ See Fed. R. Civ. P. 56.
    ---------------------------------------------------------------------------
        For most of the history of the Federal Contested Elections
    Act, there was general bipartisan agreement that the standard
    to be applied to a motion to dismiss was analogous to FRCP 56:
    ``under the [FCEA], the * * * contestant, when challenged by a
    motion to dismiss, must have presented, in the first instance,
    sufficient allegations and evidence * * * to overcome the
    motion to dismiss.'' 28 In Anderson v. Rose, supra,
    however, there was some dispute between Republicans and
    Democrats as to the applicability of a FRCP 12(b)(6) versus a
    FRCP 56 standard.29 Nevertheless, that dispute was
    ultimately much ado about nothing, as even the Republican
    majority made very clear that a FRCP 12(b)(6) standard will not
    be implemented and that the evidence offered by the contestant
    must be and will be evaluated at the motion to dismiss stage:
    ``a contestant must make credible allegations * * * the key
    word in this text is ``credible'' * * * a contestant must
    provide specific, credible allegations [to overcome a motion to
    dismiss].'' 30 The majority report continued: ``[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.''
    31 Precedents representing both Republican and
    Democratic views demonstrate that in evaluating the Contestee's
    Motion to Dismiss the Committee should have considered the
    ``credibility'' or sufficiency of Contestant's evidence in
    fulfillment of his burden.
    ---------------------------------------------------------------------------
        \28\ Tunno v. Veysey, supra, at 3 (emphasis added); see Wilson v.
    Hinshaw, supra, at 3-4; accord, Ziebarth v. Smith, H.R. Rept. No. 94-
    763 (1975); Pierce v. Pursell, H.R. Rept. No. 95-245 (1977); Archer v.
    Packard, H.R. Rep. No. 98-452 (1983); McCuen v. Dickey, H.R. Rept. No.
    103-09 (1993).
        \29\ Id. at 7.
        \30\ Id. at 6,7 (emphasis supplied).
        \31\ Id. at 7.
    ---------------------------------------------------------------------------

     B. Contestee's Motion Should Have been Granted Because Contestant Did
                     Not Carry Forward A Claim to the Seat

        Recognizing the need for the House to avoid becoming a
    forum for frivolous election challenges of any and all
    complaints as to any irregularity in the election process, the
    drafters of the FCEA included a jurisdictional requirement to
    ensure that only contestants raising legitimate outcome-
    determinative claims would be heard by the House. Thus, only
    contestants who can and do claim a right to a contestee's seat
    may be heard. In the case at hand, where Mr. Dornan failed to
    make a claim for Contestee's seat, the contest should have been
    dismissed immediately upon examination of Contestant's initial
    claim.

    1. Statutory and Precedential Requirements

        The FCEA requires the contestant to present a claim to the
    seat. ``The notice of contest should also claim right to the
    contestee's seat, as the contestee may, at his option, assert
    the failure to claim right to the seat as a defense under the
    provisions of 2 U.S.C. Sec. 383(b)(4).'' 32 In Tunno
    v. Veysey, supra, the case was dismissed, in part, because the
    contestant, by failing to even attempt to show how the
    irregularities complained of resulted in his having been
    wrongfully denied a victory in the election, ``[did] not carry
    forward his claim to the seat.'' 33 Without the
    critical claim that the irregularities or other matters
    complained of resulted in the Contestant being denied an
    otherwise rightful victory, the Committee on House Oversight
    would become not a constitutional adjudicator of legitimate
    election contests, but instead a mere investigatory committee
    charged with uncovering various and sundry allegations of
    election-related violations of state and federal law.
    ---------------------------------------------------------------------------
        \32\ Deschler's Precedents, Ch. 9, Sec. 22.
        \33\ H.R. Rept. No. 92-626 at 6.
    ---------------------------------------------------------------------------

    2. Contestant Made Only ``Claims'' That Should Have Been Pursued in
            Other Forums

        In his Notice of Election Contest, the Contestant did not
    allege that he won the election on November 5, 1996. The
    Contestant similarly did not claim that he was entitled to
    Contestee's seat. Therefore, the Contestant's contest should
    have been dismissed for Contestant's failure to make a specific
    claim for the seat in question.
        This is not to say that the Contestant did not make claims
    of any kind. Mr. Dornan raised numerous allegations about
    potential violations of state and federal election laws and
    procedures. While it was highly questionable whether any of
    these allegations were based on adequate facts, it was,
    regardless, the very nature of these claims that demonstrates
    most clearly the very purpose of the jurisdictional requirement
    that the contestant make a claim for the contestee's seat. All
    other complaints regarding election irregularity should have
    been, and in several instances were, pursued by other
    authorities. However, the appropriate authority for such claims
    is not the Committee on House Oversight pursuant to its
    constitutional obligation to determine the ultimate victor in
    an election contest.
        Mr. Dornan's claim was not that he won the election--a
    proper question under the FCEA and a proper question for the
    Committee on House Oversight. Instead, Mr. Dornan complained
    about alleged irregularities that at the time he filed his
    notice of contest were being investigated by the District
    Attorney and by the California Secretary of State. In addition,
    the Immigration and Naturalization Service was involved
    regarding potential matters within its jurisdiction, and had
    federal criminal matters been implicated, certainly the
    Department of Justice could have pursued such
    allegations.34 These are the forums in which the
    ``claim'' made by Mr. Dornan could have been heard. The
    Committee should not have confused Mr. Dornan's numerous
    ``claims'' with the important jurisdictional requirement that
    he make a specific claim that he had right to be the
    Congressman from the 46th District of California. By doing
    otherwise, the Committee was needlessly burdened with
    repetitive investigations and inquiries not contemplated by the
    Federal Contested Elections Act that were contemporaneously
    investigated by numerous other state and federal authorities.
    ---------------------------------------------------------------------------
        \34\ Indeed, as the Committee on House Oversight did in the Rose
    case, the task force could have granted Contestee's motion to dismiss
    and passed the information provided by the parties to the Department of
    Justice for review of potential election law violations.
    ---------------------------------------------------------------------------

       C. Contestee's Motion Should Have Been Granted Because Contestant
    Failed to State Sufficient Grounds to Change the Result of the Election

        Even if Mr. Dornan had stated a claim to Contestee's seat
    and had passed the jurisdictional threshold for this Committee
    to consider this contest, the contest should have nevertheless
    been dismissed because he failed to put forth sufficient
    ``credible'' evidence that if true would ``likely'' change the
    result of the election.35 Mr. Dornan's allegations,
    even if viewed in a more deferential light than required under
    the FCEA, fell far short of this standard.
    ---------------------------------------------------------------------------
        \35\ See, e.g., Anderson v. Rose, supra, at 6-7.
    ---------------------------------------------------------------------------

    1. Applicable Standard

        Numerous precedents make clear that Contestant Dornan had a
    significant burden of proof to demonstrate that the matters he
    alleged were based on credible evidence and that such conduct
    changed the outcome of the election.36 The
    Contestant's evidence had to overcome the presumptions that
    official returns are prima facie evidence of the regularity and
    correctness of an election and that election officials had
    legally performed their duties.37 The Contestant
    faces a high threshold in attempting to put forth such
    ``credible'' evidence as to the outcome of the election:
    ---------------------------------------------------------------------------
        \16\ See, e.g., Wilson v. Hinshaw, supra, at 3-4.
        \37\ See Chandler v. Burnham, supra, at Sec. 47-4; Gormley v. Goss,
    H.R. Rep. No. 73-893 (discussed in 2 Deschler's Precedents, Ch. 9,
    Sec. 47.9 (1977)).
    ---------------------------------------------------------------------------
              It is perhaps stating the obvious but a contestant
            for 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 the
            state and calling into doubt the entire electoral
            process. Thus the burden of proof placed on the
            contestant is necessarily substantial.38
    ---------------------------------------------------------------------------
        \38\ Tunno, supra, at 10.
    ---------------------------------------------------------------------------
    Mere allegations, such as allegations of fraud, are not
    sufficient; a contestant must show evidence that the results of
    the election changed because of such behavior.139
    ---------------------------------------------------------------------------
        \139\ See, e.g., Rose, supra, at 6.
    ---------------------------------------------------------------------------
        Similarly, as the Republican dissent noted in Young v.
    Mikva, ``the motion to dismiss will be granted unless
    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.''
    40 In Pierce v. Pursell, supra, the Republicans
    voted to dismiss where ``Mr. Pierce [was] unable to allege any
    specific irregularities justifying the conclusion that the
    result of the election was in error * * *'' 41
    Another formulation of this standard by which the Committee
    must judge Mr. Dornan's evidence was stated in Tunno v. Veysey,
    supra. The Tunno case presented a set of facts that, while the
    inverse of the case at hand, provide an identical flaw in the
    Contestant's case. In Tunno, the Contestant claimed that
    numerous person's registrations were disallowed and, impliedly,
    that such persons would have voted for the
    Contestant.42 Just as Mr. Tunno did not make the
    necessary allegation that such voters would have voted for him,
    Mr. Dornan did not show that such voters voted against him,
    thus there was no adequate showing that the election outcome
    would have differed. In dismissing the contestant's claim in
    Tunno, the Committee noted that the requirement that the
    contestant put forth ``substantiating evidence'' that the
    election result was affected ``carries with it the implication
    that the contestant will offer proof of such nature that the
    House of Representatives acting on his allegations alone could
    seat the contestant.'' 43 Contestant Dornan's
    allegations fell far short of this standard, just as did Mr.
    Tunno's.
    ---------------------------------------------------------------------------
        \40\ H.R. Rep. No. 95-244 at 9 (1977).
        \41\ H.R. Rep. No. 95-245 at 4 (1977) (supplemental views).
        \42\ Mr. Dornan alleged that numerous people were registered who
    should not have been, and impliedly, that such persons voted for Mr.
    Dornan's opponent.
        \43\ Tunno, supra, at 10.
    ---------------------------------------------------------------------------

    2. Even Considered in a Most Favorable Light, Contestant's Initial
            Allegations Were Insufficient to Change the Result of the
            Election

        As discussed above, in recent years Republicans and
    Democrats have differed as to the degree and sufficiency of
    proof that must be offered by a contestant in order to survive
    a motion to dismiss. However, Mr. Dornan's allegations did not
    satisfy either standard. In Anderson v. Rose, applying the more
    contestant-friendly Republican standard, the Committee still
    dismissed the claim even though the allegations called ``into
    question the validity of more specific ballots than the margin
    of victory'' * * * [because the] number of votes potentially
    affected by credible allegations is far below [the
    margin]''.44 Indeed, ``on numerous occasions where
    allegations made in the contest were either vague, improbable
    on their face, or insufficient even if true to place the
    election in doubt, Republicans have supported dismissals.''
    45 As demonstrated below, Mr. Dornan's allegations
    regarding the number of votes that this Committee should have
    considered to be in question are ``vague, improbable on their
    face, [and] insufficient even if true to place the election in
    doubt.'' 46
    ---------------------------------------------------------------------------
        \44\ Rose, supra, at 12.
        \45\ Id. at 11.
        \46\ Id.
    ---------------------------------------------------------------------------

    a. Contestant's Initial Numbers Failed to Satisfy His Burden

        In his Opposition to Contestee's Motion to Dismiss,
    Contestant cited numerous categories of votes that, because of
    alleged irregularities occurring in registration and voting,
    are somehow claimed to be tainted. Contestant implied that when
    aggregated, the numbers overcame his margin of defeat.
    Contestant attempted to aggregate these numbers despite the
    fact that they were redundant, and despite the fact that some
    of the numbers represented voter statistics across all of
    Orange County (almost five congressional districts) without any
    showing as to whether the alleged activities pertained to
    voters in the 46th Congressional District, and for those that
    might have, which candidate the votes might have affected. In
    short, Contestant failed to show that the irregularities would
    have produced enough votes in his favor to change the outcome
    of the election.

    b. Alleged Illegal Votes By Non-Citizens

        Contestant referred to an affidavit filed in the course of
    an investigation into the activities of an immigrants rights
    group (``the Group'') by an investigator for the Orange County
    District Attorney's Office which stated that the Group
    illegally registered 227 non-citizens, of whom Dornan claims
    148 voted illegally in the 46th District.47
    Contestant offered no evidence that these individuals in fact
    voted in the 46th Congressional District, or, if they did, for
    which candidate they voted. Contestant also referred to 152
    persons who were not U.S. citizens at the time they registered,
    but who voted in the election after becoming
    citizens.48 Similarly, the Contestant identified 102
    foreign-born voters for whom the INS had no record of U.S.
    citizenship.49 This number, of course, should have
    been itself reduced since there was no evidence that the
    persons voted in the 46th District, or as to how they voted.
    Contestant cited the Los Angeles Times to claim that there were
    431 current active ``students'' of the Group and that of these
    individuals, 374 had been illegally registered and 220 actually
    voted in the election.50 These 220 ``students'', who
    may or may not have been immigrants pursuing citizenship, were,
    at least in part, accounted for as part of the 148 or 102
    figures, referring to non-citizen or no INS-record voters. This
    figure was, in any event, redundant and if any ``students''
    were in fact non-citizens at the time they either registered or
    voted, they were accounted for in the above
    numbers.51 Therefore, the sum total of all of Mr.
    Dornan's initial allegations regarding the immigration rights
    Group and allegations of illegal voting came to 402 voters, 102
    of which may have voted in any one of five congressional
    districts.
    ---------------------------------------------------------------------------
        \47\ Contreras Affidavit at 30; Opposition at 7. Contestant cited
    press accounts to allege that the Group processed 13,000 clients in
    1996 and that of this number 10,000 attended classes at the
    organization's Orange County offices. Opposition at 5. Contestant
    contended that there was an ``overwhelming body of evidence'' to
    suggest that the Group registered 10,000 to 13,000 individuals. Id.
    This number had no relevance to the issue before the Committee and
    enjoyed no credible support or documentation in the record.
    Registrations are not votes counted on election day. In addition, there
    was no evidence that the 13,000 registrations impacted upon the
    election in question because there was no evidence to suggest that all
    of these people registered for the 46th Congressional District. Orange
    County covers all or part of five congressional districts, and the
    Group was active throughout Southern California.
        \48\ Opposition at 13.
        \49\ Opposition at 7-8.
        \50\ Id.
        \51\ Even if these individuals represented all new, additional
    illegal voters--which they did not, when added to the other numbers as
    shown infra, the total was still short of the electoral margin (833-
    979).
    ---------------------------------------------------------------------------

    c. Discrepancy Between the Number of Ballots Cast and the ``Voted
            Tape''

        Without alleging how, if at all, it might affect this
    election, Contestant contended that there were 1,985 more
    ballots cast throughout Orange County than the number of votes
    recorded on a ``voted tape''.52 In correspondence to
    Contestant's counsel, the Registrar of Orange County, Ms.
    Rosalyn Lever, addressed the apparent discrepancy between the
    ``voted tape'' and the actual ballots cast as recorded in the
    ``Statement of Votes.'' The Registrar noted that the ``voted
    tape'' did not represent an actual record of all individuals
    who voted in the election.53
    ---------------------------------------------------------------------------
        \52\ Opposition at 10. As described by the Registrar, ``[T]he
    ``voted tape'' is a tape of voter history and is not utilized in the
    official canvass. The ``voted tape'' is a computer product which is
    created from a static file of active voter registrations as of 29 days
    prior to the election and which are still active when the tape is
    created after the election and who have voted in the election. As a
    result, a number of legitimate voters and ``new citizen'' voters are
    not included on the ``voted tape''. In addition, records canceled
    between election day and the creation of the tape will not appear on
    the ``voted tape''. Letter from Rosalyn Lever to William R. Hart,
    Counsel to Robert Dornan, 3 (Jan. 17, 1997) (emphasis added) (submitted
    as Exhibit 11 to the Opposition to Contestee's Motion to Dismiss)
    (hereinafter ``Lever Letter'').
        \53\ Lever Letter at 3. In order to be included on the ``voted
    tape'', an individual must: (1) be a registered voter 29 days prior to
    the election, (2) vote in the election, and (3) retain an active
    registration for the period of time after the election until the voted
    tape is created. Id. Lever also noted that staff review of the voted
    tape indicated that there were 104,447 not 104,270 voter records on the
    tape, for a total of 177 more voter records than the number provided by
    Contestant in his correspondence to the Registrar and the Contestant's
    alleged ``discrepancy'' must in the first instance be reduced by that
    amount. Lever Letter at 3.
    ---------------------------------------------------------------------------
        Lever pointed out that there were 666 ``white provisional''
    voters under the National Voter Registration Act of
    1993,54 that were not included on the
    tape.55 These were proper voters and thus
    Contestant's ``discrepancy'' should have been reduced. In
    addition, the Registrar explained that there were 218 ``new
    citizen'' voters who cast ballots. These voters registered
    between 28 and 7 days prior to the election under a special
    provision of California law and did not appear on the voted
    tape because an individual must be registered 29 days prior to
    an election to appear on the voted tape. These proper voters
    also should have been subtracted from the ``discrepancy''.
    Finally, there were 464 records that were canceled after the
    election and prior to the creation of the voted tape so that
    they counted as actual ballots, but were not included on the
    voted tape.56 The Registrar attributed the remaining
    460 vote difference to ``an average of two data entry errors
    per consolidated voting precinct.'' 57
    ---------------------------------------------------------------------------
        \54\ 42 U.S.C. Sec. 1973gg, et seq.
        \55\ ''White provisional'' voters include voters who recently moved
    into or within the 46th District and who were entitled to vote under
    the National Voter Registration Act of 1993. Similarly, voters who are
    erroneously recorded as having moved must be permitted to vote at their
    usual polling place upon affirmation that they have not moved, and
    would therefore show up as having voted, but not on ``voted tape''. 42
    U.S.C. Sec. 1973gg-6(e)(3).
        \56\ Id.
        \57\ Id.
    ---------------------------------------------------------------------------
        Contestant appeared to accept the majority of the
    Registrar's explanations concerning the discrepancy between the
    actual number of ballots and the ``voted tape'' and in his
    Opposition to Contestee's Motion to Dismiss challenged only two
    of her conclusions. Contestant claimed that all or a large
    portion of the canceled records were due to the Registrar
    canceling non-citizens registrations after they voted
    improperly in the election. Contestant based this claim upon
    information from an affidavit in the District Attorney's
    investigation relating that a single non-citizen who voted in
    the election had his registration canceled by the Registrar
    after informing the Registrar himself that he was not a
    citizen. From this single statement concerning one individual,
    Contestant reached the astounding conclusion that ``[t]his
    clearly suggests that all or a substantial portion of the 464
    canceled records are a result of non-citizens voting whose
    registrations were later canceled after the election.''
    58 There is no other evidence to suggest that the
    Registrar canceled records as a result of non-citizens
    improperly voting in the election. In fact, the Registrar had
    no ability to determine whether someone was a citizen or not.
    Furthermore, the California Election Code and the National
    Voter Registration Act provide for cancellation of
    registrations for multiple reasons including: (1) most
    commonly, notification that the registrant has moved; (2) a
    request for removal by the registrant; (3) a criminal
    conviction; (4) mental incapacity; and (5) subsequent death of
    the registrant.59 Thus, the Registrar canceled
    records during the period between the close of the 29-day pre-
    election period and the time the ``voted tape'' was created for
    numerous reasons other than improper voting by non-citizens.
    ---------------------------------------------------------------------------
        \58\ Opposition at 10.
        \59\ See 42 U.S.C. Sec. 1973gg; Cal. Elec. Code Sec. 2201 (West
    1996).
    ---------------------------------------------------------------------------
        Second, Contestant challenged Ms. Lever's explanation that
    the remaining 460 vote discrepancy was the result of ``an
    average of two data entry errors per consolidated voting'
    precinct.'' 60 Combining the disputed figures for
    the ``canceled records'' and the ``data entry error'' votes,
    Contestant in his Opposition averred that there remained a 924
    vote discrepancy between the actual number of ballots cast and
    the ``voted tape'' measurement.61 But Contestant
    obfuscated the fact that these ``data entry errors'' were not
    errors made in conjunction with counting ballots, but only in
    the creation of the ``voted tape''. In fact, a state recount
    process, unchallenged by the Contestant, eliminated any
    potential errors in the balloting process. Thus, the data entry
    errors offer no evidence for Contestant.62
    ---------------------------------------------------------------------------
        \60\ Lever Letter at 3.
        \61\ Opposition at 11.
        \62\ And even if they did, such random human errors would have been
    counted equally against each of the candidates, resulting in a net
    effect of zero votes.
    ---------------------------------------------------------------------------

    d. Other ``Irregularities'' Claimed By Contestant

        Contestant raised other ``irregularities'' concerning votes
    cast in the election. These allegations were either irrelevant
    to the vote total or constituted an insignificant number of
    votes. Contestant claimed that there were 145 residences from
    which six to twelve persons voted for a total of over 700
    ``suspect'' votes.63 The Registrar's staff
    investigated these residences and found that they appeared to
    be ``residences with multiple families or large family
    groups,'' apartment complexes, or large residential
    facilities.64 In any event, Contestant's claim was
    irrelevant because he did not offer any suggestion as to why
    votes from residences with six to twelve adults should count
    any less than votes from residences with one or two adults, nor
    did he allege that such voters did not vote for him. Thus,
    there was no improper effect here on the election.
    ---------------------------------------------------------------------------
        \63\ Opposition at 14.
        \64\ Lever Letter at 2.
    ---------------------------------------------------------------------------
        Contestant also alleged that the Group turned in 400
    registration affidavits on October 7, 1996, the last day
    permitted by law. 65 Once again, Contestant did not
    indicate how this number affects the vote total for the
    election. He may have intended to suggest that the Group held
    onto registration affidavits longer than the three days
    permitted under California law. Even if the Group held onto the
    affidavits longer than three days, the proper remedy under
    California law for such a violation would not have been to
    exclude the votes of the registrants. 66
    Furthermore, Contestant offered no evidence to indicate for
    whom the registrants voted. He did not assert that any specific
    votes should be counted or not counted due to these
    registrations. Again, there was no impact here on the election.
    ---------------------------------------------------------------------------
        \65\ Opposition at 15.
        \66\ Cf. Cal. Elec. Code Sec. 2158(b)(1).
    ---------------------------------------------------------------------------
        Contestant asserted that there were 39 voters who voted
    from business addresses.67 The Registrar addressed
    this issue in her correspondence to Contestant's counsel,
    stating that her staff investigated these addresses and found
    only two addresses that were not residences for a total of four
    improper votes.68 Similarly, Contestant claimed that
    there were 38 instances of duplicate registrations indicating
    possible double voting.69 After investigation by the
    Registrar's office, the Registrar concluded that there were
    eleven duplicate registrations for a total of eleven voters.
    According Contestant the benefit of the doubt, these 11 double
    voters could have produced 22 votes. Once again, there was no
    indication that these 22 votes were not cast for the
    Contestant.70
    ---------------------------------------------------------------------------
        \67\ Opposition at 14.
        \68\ Lever Letter at 2.
        \69\ Opposition at 14.
        \70\ Lever Letter at 2.
    ---------------------------------------------------------------------------
        Contestant contended that there were 128 absentee ballot
    envelope discrepancies. The Registrar investigated these
    allegations and determined that 60 ballots did not meet
    requirements under California law and four were not properly
    executed, for a total of 64 improper votes. Again, we did not
    know, nor did the Committee ever determine, how these people
    voted.

    e. Contestant Did Not Demonstrate Any Irregularities In The Electoral
            Process That Would Have Changed The Outcome Of The Election

        As demonstrated above, Contestant's own numbers and figures
    claiming irregularities and improper votes, numbers in no way
    justified or conceded by Contestee, when put in the light most
    favorable to Contestant, reduced to ``possible'': (i) 402 votes
    by non-citizens, (ii) 464 ``canceled record'' votes, (iii) four
    votes from non-residential addresses, (iv) 22 votes from
    duplicate registrations and (v) 64 improper absentee ballots.
    There are several reasons why these figures could never have
    demonstrated that the outcome of the election had been placed
    in doubt.
        First, the categories were not mutually exclusive. For
    example, the number of alleged non-citizen votes may have
    represented some of the ``canceled record'' votes, ``non-
    residence'' votes, ``duplicate registration'' votes or
    absentees. This was true for each of the categories. Second,
    each category of improper votes should have been further
    reduced since we did not know for which candidate, if any, they
    were cast. Third, in the case of the non-citizens, we did not
    even know if they voted in the 46th District.
        The Contestant and the Committee should not have assumed
    that all questionable votes benefited Contestee. As discussed
    in detail below, Committee precedent dictates that the
    Contestant and the Committee should have allocated the votes in
    question by proportionally reducing the questionable votes from
    each candidate's total according to the proportion of voters in
    each precinct who voted for each candidate in the
    election.71 Proportional reduction would have
    substantially reduced any total number of votes Contestant
    Dornan claimed far below the number needed to question the
    outcome of the election.
    ---------------------------------------------------------------------------
        \71\ Anderson v. Rose, supra, at 7 n. 15 (``The House's precedents
    allow for deletion of improper ballots by proportional and
    deduction'').
    ---------------------------------------------------------------------------
        Therefore, even assessing Contestant's evidence in a most
    favorable light, it is a simple matter of arithmetic that there
    is a lack of ``credible'' evidence that would ``likely'' change
    the result of the election. The Committee should have granted
    Contestee's Motion to Dismiss without delay.

      D. The Majority Was Poised To Disregard Well-Established Committee
      Precedent Requiring the Use of Proportional Deduction to Apportion
                                 Disputed Votes

    1. Introduction

        The Federal Contested Election Act does not provide the
    positive law to be applied by the Committee in rendering a
    final decision in an election contest. The FCEA governs only
    the process, and not the substance, in disposing of election
    contests.72 Because the FCEA ``was meant to install
    a procedural framework without changing substantive precedent
    of the House,'' 73 in determining the rules and
    standards to apply in evaluating the evidence gathered by the
    Committee and reaching a substantive decision as to the
    outcome, the Committee must look, with strong inclination
    toward stare decisis, to House precedents.
    ---------------------------------------------------------------------------
        \72\ The Act ``is strictly limited to setting up a procedural
    framework for prosecution defense and disposition of an election
    challenge * * *'' H. Rept. 91-569, accompanying H.R. 14195 cited in
    U.S.C.C.A.N., 91st Cong., 1st Sess., 1969 at 1459.
        \73\ See H. Rep. No. 104-852, 104th Cong., 2d Sess., Dismissing the
    Election Contest Against Charlie Rose, at 8 (1996) (hereinafter
    ``Rose''.
    ---------------------------------------------------------------------------
        The Majority presented ``documented evidence'' of 748
    illegal votes upon approving a motion to dismiss to conclude
    the election contest.74 The Majority continued to
    present its evidence as if it only had to present a number of
    votes greater than the Contestee's margin of victory to
    demonstrate that the outcome of the election should be
    questioned. However, there is no way to determine for which
    candidates these voters cast their ballots. The Committee
    75 cannot determine which voters cast improper votes
    without violating the Constitutional and statutory provisions
    protecting the secrecy of the ballot. Even if the individuals
    agreed to disclose for whom they voted, this testimony might
    not be accurate, as external factors could influence
    individuals' public testimony to differ from the votes they
    cast at the polls in secrecy. House precedents applying
    remedies for treating irregularities in the votes cast in
    previous elections indicate that, although there may be several
    possible remedies for addressing contested votes, the Committee
    would be required use the proportional reduction method to
    reduce the number of suspect votes.
    ---------------------------------------------------------------------------
        \74\ This number ignores the Majority's blatant arithmetic error
    discussed above, whereby the Majority improperly inflated the number of
    illegal votes by 45.
        \75\ Throughout this portion of the Minority views the term
    ``Committee'' refers to the House Committee on Oversight and its
    predecessors that dealt with election contests.
    ---------------------------------------------------------------------------
        Under proportional reduction, the number of questioned
    votes are reduced, precinct by precinct, in the inverse
    proportion to the candidates' percentages in that precinct. For
    example, if there are a number of votes from across a district
    that are in question, and 10 of those votes were cast in
    Precinct A, and in Precinct A there were 100 votes cast, with
    candidate X receiving 80 votes (80 percent), and candidate Y
    receiving 20 votes (20 percent), then you would subtract 8
    votes (80 percent of 10) from candidate A's total of 80 and 2
    votes from candidate B's total of20 to give a new vote result
    in Precinct A of 72 votes for candidate X and 18 votes for candidate Y.
    This process would be carried on for each precinct where questioned
    votes were cast and then the votes totals across the district would be
    added up to determine the winner of the election.

    2. Prior Election Contest Precedents Indicate That Proportional
            Deduction Is the Appropriate Remedy to Apportion The Disputed
            Votes

        In the most recent election contest considered by the House
    of Representatives prior to Contestant Dornan's challenge, the
    Committee on House Oversight discussed several potential
    remedies available for contestants successful in ``establishing
    convincing evidence of irregularities or fraud. * * *''
    76 In that election contest, involving former
    Representative Charlie Rose, the Committee set forth the
    appropriate remedies for election contests as: (1) proportional
    deduction of the improper votes; (2) exclusion of entire
    contaminated precincts; or (3) ordering a new
    election.77 It found that selection of the
    appropriate remedy depended on whether the allegations could be
    proven and the extent to which the alleged conduct impacted
    upon the apparent victory of the contestee.78
    ---------------------------------------------------------------------------
        \76\ See H. Rep. No. 104-852, 104th Cong., 2d Sess., Dismissing the
    Election Contest Against Charlie Rose, at 7 (1996) (hereinafter ``Rose
    Contest'').
        \77\ Id. at 7-8.
        \78\ Id. at 8.
    ---------------------------------------------------------------------------
        Examination of the three categories of remedies as they
    have been used in prior election contests demonstrates that
    proportional deduction is the appropriate remedy for voting
    irregularities caused by voters. In prior election contests,
    the Committee excluded the returns of individual precincts only
    where the facts demonstrated that election officials engaged in
    improper conduct or evidence of irregularities strongly
    indicated fraud. The Committee appears to have rarely, if ever,
    formally recommended a new election and considers such a remedy
    to be extreme in nature.

    a. Requiring a New Election Would Have Been Inappropriate In the
            Present Election Contest Because This Remedy Is Rarely Used And
            It Was Possible to Determine The Winner Without Holding An
            Entirely New Election

        In the Rose Contest, the Committee stated that ``an
    entirely new election is proper if the contamination of votes
    makes the winner of the election virtually impossible to
    determine.'' 79 This view was prefaced in Tunno v.
    Veysey,80 where the Committee commented that:
    ---------------------------------------------------------------------------
        \79\ Rose Contest at 7-8.
        \80\ H. Rep. No. 92-626, 92d Cong., 1st Sess. (1971).
    ---------------------------------------------------------------------------
            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.81
    ---------------------------------------------------------------------------
        \81\ Id.
    ---------------------------------------------------------------------------
        Thus, the limited precedents on declaring a new election
    suggest that such action should only be taken where the returns
    are so contaminated that an accurate determination of the
    winner would be impossible. Use of this remedy requires
    irregularities beyond even the high threshold required for the
    exclusion of precincts. In several prior election contests, the
    Committee believed that the violations of election laws were
    substantial enough so that the true outcome of the election
    could not be determined.82 However, the Committee
    did not resort to the extreme remedy of ordering a new
    election. This remedy has rarely, if ever, been used and the
    present case does not represent the type of widespread fraud
    that might justify such an extreme remedy.
    ---------------------------------------------------------------------------
        \82\ See discussion of Chandler v. Bloom, Farr v. McLane and Paul
    v. Harrison , in sections I.B, I.D, infra.
    ---------------------------------------------------------------------------
        Most importantly, as discussed above, the Contestant did
    not produce evidence indicating that there are sufficient
    improper votes to change the outcome of the election.
    83 Since such evidence has not been presented, the
    Committee should not consider ordering a new election. In fact,
    since the Contestant cannot establish that there are more votes
    in question than the Contestee's margin of victory, he cannot
    even support a claim that there exists any doubt as to the true
    winner of the election. Such a situation is analogous to the
    election contest of Salts or Major, where the Committee found
    it unnecessary to consider any remedy because, even if all the
    disputed votes were awarded to the Contestant, it would not
    alter the outcome of the election.
    ---------------------------------------------------------------------------
        \83\ Additionally, there appears to be a lesser percentage of
    alleged improper votes in the present case than in previous cases in
    which the Committee found that the outcome of the election could not be
    determined. See discussion of Chandler v. Bloom, Farr v. McLane and
    Paul v. Harrison, in sections I.B, I.D, infra.
    ---------------------------------------------------------------------------

    b. Committee Precedents Dictate That The Remedy of Excluding Entire
            Precincts Should Only Be Used When An Accurate Vote Count
            Cannot Be Obtained Due to Widespread Illegal Activities or
            Fraud

        In general, the Committee has used the remedy of excluding
    entire precincts when the extent of illegal votes affected the
    total vote count in the precincts to a such degree that an
    accurate count could not reliably be obtained. Unlike the
    proportional deduction cases, these cases did not involve a
    limited number of votes from precincts, but involve widespread
    fraud or illegal activities, usually on the part of election
    officials.
        In Hill v. Palmisano,84 the Committee resorted
    to excluding the votes of entire precincts after finding ``the
    conduct of the election board in this precinct with respect to
    the custody, count, tally, and certification of ballots was in
    total disregard of and disobedient to the provisions of the
    laws of the State of Maryland.'' 85 The Committee
    found severe violations of state election laws including: (1)
    false and fraudulent vote tally sheets; (2) the vote count was
    unreliable and uncertain; (3) the vote count was tainted with
    fraud because candidates' workers participated in the count;
    (4) false and fraudulent returns; (5) the certificate of
    election was filled out with blanks left before the polls even
    closed; (6) unauthorized persons counted the ballots; (7) the
    method of counting the ballots was unreliable and presented
    opportunities for tampering; and (8) election officials
    falsified returns with regard to state constitution and city
    ordinance referendum questions on the ballot. The Committee
    concluded that the opportunity to substitute ballots, coupled
    with the desire to substitute ballots, was sufficient
    justification to believe that some substitutions occurred. Most
    importantly, the Committee believed that exclusion of the
    precincts would serve as a refusal to condone election
    officials' violations of the law.
    ---------------------------------------------------------------------------
        \84\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 7.4
    (discussing Hill v. Palmisano, H. Rep. 1901 Part 2, 71st Cong., 2d
    Sess. (1930)).
        \85\ Id. at 877.
    ---------------------------------------------------------------------------
        The Committee also invoked the remedy of excluding entire
    precincts in Chandler v. Bloom 86 where it found:
    ---------------------------------------------------------------------------
        \86\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 4.2
    (discussing Chandler v. Bloom, H. Rep. 224, 68th Cong., 1st Sess.
    (1924))
    ---------------------------------------------------------------------------
            *  *  * utter complete, and reckless disregard of the
            provisions of the election laws of the state of New
            York involving the essentials of a valid election, and
            the returns of the election boards therein are so badly
            tainted with fraud that truth is not deductible
            therefrom, and that it can be fairly said that there
            was no legal election held in said election districts.
            87
    ---------------------------------------------------------------------------
        \87\ Id. at 789.
    ---------------------------------------------------------------------------
    The Committee detailed egregious violations of the state
    election laws to support its conclusion including: (1) stolen
    ballots; (2) improperly constituted board of election
    inspectors; (3) persons voting multiple times; (4)
    electioneering too close to the polls; (5) unsworn persons
    handling ballots; (6) intimidation of poll workers; (7)
    drunkenness by the head of the board of election inspectors;
    (8) inspectors with knowledge of stolen ballots failing to
    report such illegalities; and (9) torn, erased, and mutilated
    ballots.
        In Salts or Major 88 the Committee found it
    unnecessary to decide the contestee's claim that an entire
    precinct should be excluded because the contestee would win
    regardless of whether the votes of the precinct were counted.
    However, the Committee stated that precedent clearly supported
    taking this action, since election officials had not placed the
    registration number of the individual voters on their ballots
    as required by state law.
    ---------------------------------------------------------------------------
        \88\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 2.4
    (discussing Salts or Major, H. Rep. 961, 66th Cong., 2d Sess. (1920)).
    ---------------------------------------------------------------------------
        The Committee deviated from its traditional use of the
    remedy of excluding precincts in the contest of Tague v.
    Fitzgerald, 89 where the irregularities involved
    illegal registration. Bar tenders, liquor dealers, and
    municipal employees registered to vote, even though they did
    not reside in the districts in which they registered, in order
    to be able to vote on issues affecting their livelihoods. The
    Committee excluded the returns of entire districts where the
    vote was so tainted with fraud or irregularity that a true
    count could not be taken, despite the fact that there was no
    evidence of misconduct on the part of the election officials.
    The Committee dismissed using the remedy of proportional
    deduction because it believed: (1) the number of fraudulent
    votes exceeded the number of legal proven votes in the
    districts; (2) the conditions producing the fraudulent votes
    did not cause them to be cast pro rata; and (3) it would
    establish a bad precedent and inadequate remedy, especially
    because it would result in the election of the contestant.
    Eventually the Committee declared the seat vacant.
    ---------------------------------------------------------------------------
        \89\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 2.1
    (discussing Tague v. Fitzgerald, H. Rep. 375, 66th Cong., 1st Sess.
    (1919)).
    ---------------------------------------------------------------------------
        Prior election contest precedents do not support excluding
    entire precincts from the vote count in the current contest.
    This case does not involve fraud or misconduct on the part of
    the election officials, as was the case in Paul v. Harrison,
    Farr v. McLane, Hill v. Palmisano, Chandler v. Bloom, and Tague
    v. Fitzgerald. Nor is there any evidence of widespread
    disregard for the election laws of the state of California. In
    the present case, unlike Tague v. Fitzgerald, the Contestant
    did not allege that there were a greater number of fraudulently
    cast votes than legally valid votes. Thus, excluding entire
    precincts would have been too extreme a remedy to apportion the
    disputed votes in the present contest.

    c. The Committee Has Relied On Proportional Reduction In Analogous
            Situations to Contestant Dornan's Election Challenge

        Proportional deduction involves determining the number of
    improper votes in a precinct and reducing the number of votes
    from each candidate on a pro rata basis according to the
    percentage of the vote each candidate received in that
    precinct. In Oliver v. Hale, 90 the Committee
    determined that 109 absentee and physical disability ballots
    should be rejected on the basis of several different categories
    of violations by voters--including the fact that a portion of
    the 109 individuals were not registered or qualified to vote.
    The Committee believed that it was not possible to match the
    invalid absentee ballots to particular votes cast by identified
    voters. Citing Committee precedent, the Committee proceeded to
    use the proportional deduction method to apportion the votes in
    question.
    ---------------------------------------------------------------------------
        \90\ See Lewis Deschler, Deschler's Precedents of the United State
    House of Representatives, 94th Cong., 2d Sess., H. Doc. No. 94-661,
    Vol. 2, Ch. 9, Sec. 57.3 (discussing Oliver v. Hale, H. Rep. 2482, 85th
    Cong., 1st Sess. (1958)) (hereinafter ``Deschler's Precedents'').
    ---------------------------------------------------------------------------
        The Committee stated a ``general rule'' for using
    proportional deduction in Macy v. Greenwood. 91 The
    Committee found that the Board of Election Commissioners
    properly determined that 932 votes challenged on the basis of
    failing to meet a durational residency requirement were in fact
    valid. However, the Committee stated that had it found ``the
    932 votes illegally cast, the votes presumably would be
    deducted proportionally from both candidates according to the
    entire vote returned for each. This is the general rule when it
    cannot be ascertained for which candidate the illegal votes
    were cast.'' 92 The Committee also indicated that in
    the absence of fraud, charges of irregularities as to
    registration would not invalidate votes. In Roush or Chambers,
    93 the Committee once again applied ``the general
    rule in the House for deduction of illegal votes where it is
    impossible to determine for which candidate they were counted''
    94 to attribute 42 absentee ballots that had been
    illegally cast. The Committee stressed its long history of
    using proportional deduction in such circumstances.
    ---------------------------------------------------------------------------
        \91\ See Deschler's Precedents, Vol. 2, Ch. 9, Sec. 56.4
    (discussing Macy v. Greenwood, H. Rep. 1599, 82nd Cong., 2d Sess.
    (1952)).
        \92\ Id. at 572.
        \93\ See Deschler's Precedents, Vol. 2, Ch. 9, Sec. 59.1
    (discussing Roush or Chambers, H. Rep. 513, 87th Cong., 1st Sess.
    (1961)).
        \94\ Id. at 602.
    ---------------------------------------------------------------------------
        The Committee used proportional deduction to apportion the
    illegal votes of non-citizens in Bailey v. Walters,
    95 including aliens who had never been naturalized
    and would not disclose for whom they voted. The Committee
    subtracted the votes of non-citizen voters who testified for
    whom they voted from the appropriate candidates' totals. For
    non-citizen voters who exercised their Constitutional right not
    to disclose their vote, the Committee used proportional
    deduction to attribute their votes.
    ---------------------------------------------------------------------------
        \95\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 5.4
    (discussing Bailey v. Walters, H. Rep. 1450, 69th Cong., 1st Sess.
    (1926)).
    ---------------------------------------------------------------------------
        Proportional deduction would have been the appropriate
    remedy for attributing the disputed votes in the present
    contest. In past election contests, the Committee has used
    proportional deduction to attribute votes in similar situations
    to the present contest. In Bailey v. Walters, the Committee
    determined that proportional deduction was the proper remedy to
    attribute the votes of certain non-citizens. Similarly, in
    Oliver v. Hale and Roush or Chambers the Committee used
    proportional deduction to attribute small numbers of absentee
    ballots, 109 and 42, respectively. The 932 votes at issue in
    Macy v. Greenwood, which the Committee could have attributed
    using proportional deduction, are similar to the votes that may
    be at issue in the present controversy because both situations
    involve deficient registrations, while neither situation
    involves fraud.

    d. The Nature And Severity of the Alleged Election Law Violations
            Required the Committee to Use the Remedy of Proportional
            Deduction Rather Than the Exclusion of Precincts

        In at least two election contests, the Committee used a
    combination of the remedies of proportional deduction and
    exclusion of entire precincts to resolve election contests.
    These contests highlight the differences between the two
    remedies and demonstrate why proportional deduction is the
    appropriate remedy in the present contest. The Committee
    rejected the votes of entire precincts in Paul v. Harrison
    96 because ``there was such an utter, complete, and
    reckless disregard of the mandatory provisions of the
    fundamental law of the State of Virginia involving the
    essentials of a valid election, that it can be fairly said that
    there was no legal election in those precincts.'' 97
    The Committee found that there were violations of the
    Constitutional and statutory requirements of secrecy of the
    ballot, laws requiring keeping the ballot box in view; and the
    counting and disposition of ballots. While the Committee found
    these violations to be egregious enough to warrant exclusion of
    entire precincts, it indicated that instances of illegal
    registration or the non-payment of poll taxes, where the
    Committee could not determine for whom individual voters voted,
    should be attributed using proportional deduction.
    ---------------------------------------------------------------------------
        \96\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 3.6
    (discussing Paul v. Harrison, H. Rep. 1101, 67th Cong., 4th Sess.
    (1922)).
        \97\ Id. at 770.
    ---------------------------------------------------------------------------
        Similarly, in Farr v. McLane 98 the Committee
    addressed an election contest containing a wide range of
    violations including: (1) unregistered voters casting ballots;
    (2) names appearing on the voted tape for persons who had not
    cast ballots; (3) individuals voting who were minors or had not
    paid the mandatory poll tax; and (4) the placement of
    fraudulent ballots in the ballot box. The Committee found that
    for the majority of the 1,006 illegal votes, there was no way
    to determine for which candidate the votes were cast. It
    determined that in the districts in which there was conclusive
    evidence of fraud on the part of the election officials,
    precedent justified rejecting the entire vote of these
    precincts. The Committee emphasized that in these precincts not
    only had persons been permitted to vote who had not registered,
    but there was evidence of other fraud and collusion on the part
    of election officials. Where there was solely evidence of
    persons voting who had not registered, the Committee used
    proportional deduction to reduce the votes of each candidate
    pro rata.
    ---------------------------------------------------------------------------
        \98\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 2.7
    (discussing Farr v. McLane, H. Rep. 1325, 66th Cong., 3d Sess. (1921)).
    ---------------------------------------------------------------------------
        These contests clearly demarcate the line between the
    remedies of proportional deduction and the exclusion of
    precincts. Unlike the present contest, both Paul v. Harrison
    and Farr v. McLane involved violations of election laws by
    election officials. These violations contributed to an overall
    disregard for the applicable election laws not present in the
    current contest. In such instances, the Committee relied on the
    exclusion of entire precincts. Contestant Dornan did not
    suggest that California election officials violated applicable
    election laws and thus the Committee properly did not resort to
    excluding entire precincts.
        Paul v. Harrison and Farr v. McLane also addressed the
    issue of improper registrations, the only violation Contestant
    claimed in the current contest. In both these contests, the
    Committee determined that proportional reduction was the proper
    remedy to apportion the ballots of voters who had improperly
    registered. The Committee should have adhered to its
    determinations in prior contests and used proportional
    reduction in the present contest to apportion the disputed
    ballots of voters who allegedly registered improperly.

                                 VI. CONCLUSION

        The Minority fully supports the dismissal of Contestant
    Dornan's election contest against Contestee Sanchez. However,
    we have strong concerns regarding the process the Majority used
    to extend the election contest beyond the time warranted. The
    costs of the election contest to the Contestee, Contestant, and
    U.S. taxpayers exceeded one million dollars. The Contestee,
    Contestant, and Committee spent valuable time and resources on
    a matter that should have been resolved in a shorter time frame
    and at considerably less cost. The Majority constantly denied
    the Minority the basic courtesies of sharing information in a
    timely manner and providing notice of Committee actions.
        The Minority has strong concerns that this election contest
    may establish an unwelcome precedent of extending election
    contests beyond the stages of investigation of the claim and a
    contestee's motion to dismiss. The Majority should have found
    that Contestant Dornan's Notice of Election Contest did not
    present ``credible'' evidence to survive Contestee Sanchez's
    Motion to Dismiss. Inviting full investigations of any election
    with close results will threaten our nation's democratic
    processes. The Majority included numerous categories of voters
    in its final number of suspect voters when they could not
    establish that these voters cast illegal ballots. Their refusal
    to share their analysis and establish a joint database to agree
    on the status of individual voters made it impossible for the
    Minority and Majority to work from an identical group of
    suspect voters. Finally, even after reaching its final number
    of suspect voters, the Majority did not recognize Committee
    precedent and proportionally reduce these votes according to
    the number of votes each candidate received in specific
    precincts. The Majority's action in this regard could have
    established a dangerous precedent of changing the outcome of an
    election without regard to the true number of suspect votes
    necessary to produce this result.

                                                         Sam Gejdenson.
                                                           Steny Hoyer.
                                                 Carolyn C. Kilpatrick.

                                   APPENDIX A

                                       County of Orange
                                       General Services Agency,
                               Santa Ana, California, January 17, 1997.
    William R. Hart,
    Hart, King & Coldren, 200 East Sandpointe, Fourth Floor, Santa Ana,
            California 92707
        Dear Mr. Hart: Our office has concluded its review of the various
    lists submitted by you on December 17, 1996. Though it would be
    inappropriate to discuss individual voter records, I have provided
    below summary data which should clarify and offer perspective on the
    issues you have raised.
    Business Addresses
        Of the 50 addresses submitted representing 122 voters, 8 of the
    addresses representing 29 voters were duplicated on your list. The
    resulting 42 addresses representing 93 voters were reviewed by staff.
    From that review the following was determined:
        39 addresses representing 88 voters were locations which served as
    the voters' residence and, therefore, met criteria for registering to
    vote.
        2 addresses representing 4 voters were locations which were not the
    voters' residence. Those records are being forwarded to the District
    Attorney for review and appropriate action.
        1 address representing 1 voter was improperly entered in the
    computer system. The address information has been corrected. Both
    addresses were within the same ballot type for the general election.
    Registration Indicating the Voter was Under Age
        Two records were submitted which appeared to indicate the voters
    were not 18 years of age at the time of election. After reviewing the
    original and prior affidavits of registration, staff has determined
    both individuals are over 18 years of age and the discrepancies were
    caused by data entry errors.
    Absentee Voter Records
        Of the 128 records submitted, 5 records were duplicated on your
    list. The resulting 123 records were reviewed by staff. From that
    review the following was determined:
        59 records appear to have met the basic criteria of absentee return
    in person, by certain authorized relatives, or in emergency by a
    designated representative.
        60 records do not appear to have strictly conformed to the criteria
    of EC 3017 but were executed by the voter.
        4 records that the absent voter had not properly executed.
    Duplicate Registrations Indicating Possible Double Voting
        Of the 114 registration groupings submitted, 17 registration
    groupings were duplicated on your list. The resulting 97 registration
    groupings were reviewed by staff. From that review the following was
    determined:
        67 registration groupings, though appearing to indicate duplicated
    records on your list, were actually separate individuals with similar
    registration data.
        19 registration groupings had duplicate records. However, after
    reviewing original documents, information does not support the
    conclusion that any of these voters actually voted twice. The duplicate
    registrations have been canceled.
        11 registration groupings, representing 11 voters, have been
    referred to the District Attorney for review for possible Elections
    Code violations.
    Addresses with 6 or More Registered Voters
        Of the 145 addresses submitted with 6 or more registered voters,
    two addresses were also submitted and reviewed as part of the business
    address list. Staff reviewed the remaining 143 addresses with the
    following result.
        127 addresses appear to be residences with multiple families or
    large family groups.
        11 addresses are apartment complexes.
        5 addresses are large residential facilities.
    Affidavits Potentially Held More than 3 Days Before Submittal to the
            Registrar of Voters
        Holding records for more than three days does not affect the
    voter's eligibility to vote.
    ``Voted Tape'' and ``Statement of Votes'' do not Match
        The ``voted tape'' is a tape of voter history and is not utilized
    in the official canvass. The ``voted tape'' is a computer product which
    is created from a static file of active voter registrations as of 29
    days prior to the election and which are still active when the tape is
    created after the election and who have voted in the election. As a
    result the ``white provisional'' (NVRA Fall Safe) voters and ``new
    citizen'' voters are not included on the ``voted tape''. In addition,
    records canceled between election day and the creation of the tape will
    not appear on the ``voted tape''. Some voted records will not
    accurately reflect the method of voting.
        The data you submitted was compiled by ``regular'' precinct and not
    ``consolidated voting'' precinct. This accounts for many of the
    discrepancies in the detail portion of your list. Due to the nature of
    the ``voted tape'' and the fact that the Statement of Votes is compiled
    by ``consolidated voting'' precinct, this office will address only the
    summary totals on your report.
        The report submitted indicated 106,255 ballots cast on the
    statement of Votes and 104,270 voters on the ``voted tape''. Staff has
    reviewed our ``voted tape'' and has determined there are 104,447
    individual voter records on the ``voted tape''. Therefore, that shall
    be the base number used.
    ``Voted tape'' total..........................................   104,447
    ``White provisional'' voters not included on ``voted tape''...       666
    ``New citizen'' voters not included on ``voted tape''.........       218
    Canceled records not included on ``voted tape''...............       464
                        --------------------------------------------------------------
                        ____________________________________________________

        Total.....................................................   105,795
        This leaves a difference between the ``voted tape'' and the
    Statement of Votes of 460 records. The 460 records indicate an average
    of two data entry errors per ``consolidated voting'' precinct.
        The information you have submitted has been valuable in providing
    an additional opportunity for this office to review various aspects of
    our operation. Thank you for bringing your concerns to my attention.
                Very truly yours,
                                                 Rosalyn Lever,
                                                   Registrar of Voters.

                                ADDITIONAL VIEWS

        I concur in the Minority views which have been subscribed
    to by my colleagues, Congressman Sam Gejdenson and
    Congresswoman Carolyn Kilpatrick. Those views set forth what I
    believe to be the appropriate precedents, previously enunciated
    in cases dismissing contests filed by both Democrats and
    Republicans. Those precedents were agreed to in most instances
    by Republican Minority Members. In addition, the precedents
    established by the present Republican Majority in Anderson v.
    Rose, H. Rept. 104-852 (1996) were basically consistent with
    those set under Democratic Majorities.
        It has been clear over the last three years that the
    Majority has been committed to lowering the threshold necessary
    to overcome a contestee's motion to dismiss. That threshold has
    been constructed to insure that the judgment of an electorate
    would be challenged only upon a showing of ``sufficient
    allegations and evidence,'' Tunno v. Vessey, H. Rept. 92-626
    (1971), that the outcome of that election was other than the
    election of the contestee. Such evidence must be more than
    simple assertion or hearsay, it must be credible.
        In my opinion, this case and the very bad precedent that
    the Majority is attempting to establish is a direct outgrowth
    of the outrage the Majority still harbors about the process and
    decision in the McCloskey v. McIntyre case, H. Rept. 99-58
    (1985). That outrage (see the additional views of Congressman
    Bill Frenzel appended to the Minority views in the above House
    report) has, I regret, led today's Republican Majority to do
    exactly that which they strongly condemned then.
        The Majority has repeatedly distinguished its handling of
    this case and previous ones in the 104th Congress from what
    they believe was the egregious and unjust ``stealing'' of the
    election in the Eighth Congressional District of Indiana.
    However, in many ways the procedures followed here more nearly
    replicate the McCloskey process, which was not an FCEA case,
    more than that established by the FECA. Essentially, the
    Committee in this case became the moving party and
    investigator. To that extent, the parties contrary to what was
    contemplated by the FECA, became spectators and in fact, to
    this very date, do not have the essential facts on which this
    case is now being resolved. They, like the Minority, and the
    public, have simply the conclusions drawn by the Majority from
    the facts gathered by the Majority.
        It would be unproductive to discuss the McCloskey case
    here. However, I believe it useful to briefly review the
    Minority (Republican) views in that case. They then complained
    bitterly that McCloskey had not been required to pursue his
    claim under the Federal Contested Election Act. In so doing
    they said:
              Under the FECA, a candidate contesting an election
            must prove that the election result entitle him to the
            seat, 2 U.S.C. Sec. 385. His allegations, the
            equivalent of pleadings of law and fact, must show
            (emphasis added) that, except for the grounds stated,
            the challenged election results would have been
            different.'' McCloskey v. McIntyre, House Rept. 99-58,
            p. 50.
              As has been pointed out in the Minority views here,
            the precedents established and followed consistently
            should have resulted in the granting of Congresswoman
            Sanchez's Motion to Dismiss either at the Feb. 19, 1997
            hearing or subsequent to the ``field hearing'' held in
            California in April, 1997.
        Instead, the Majority chose to embark on an unchartered
    and, I believe, very unwise course in this case. They said they
    did so to establish a precedent for going beyond a motion to
    dismiss, which had never before been done in an FECA case. In
    so doing, they pursued an ad hoc process which largely ignored
    the process established in the FECA and denied due process to
    both the parties. Indeed, at almost every juncture the Majority
    trampled on basic fairness to the parties and to the Minority.
    As a result, I am hopeful that this case will be viewed as an
    anomaly in the future. At almost every stage in the Task
    Force's deliberations, the Majority ignored the requirements of
    the statute, the relevant precedents, and basic procedural due
    process.
        Throughout the course of this case, I urged the Majority to
    work together with the Minority to establish mutually agreed
    upon procedures as we engaged in areas of discovery and
    considerations never previously undertaken under the FECA. The
    Majority initially suggested (incorrectly) that meeting to
    discuss such procedures might violate some uncited sunshine
    law. When told that discussing such procedures in open session
    would be welcomed, they simply demurred. Ironically, as is
    pointed out in the Minority views, almost every decision in
    this case was made unilaterally, secretly, and incorrectly.
    However, the decision to dismiss, although late, was a correct
    one.
        The only area in which there was an effort to reach
    decisions through open discussion between Majority and Minority
    was with respect to the disposition and enforcement of Mr.
    Dornan's subpoenas. It is not clear to me why that was the
    exception. However, it convinced me that such bipartisan
    discussions should absolutely occur in the future, if a fair
    procedure is to be constructed and pursued in the future.
        Historically, both parties have dealt with great care when
    considering a contest to the election of a Member of Congress.
    It is a grave constitutional responsibility. As such, it should
    be considered in the most judicious and bipartisan way
    possible. That was not done in this case. Therefore, although
    the proper outcome was reached, the precedent established is of
    no value to future Congresses. Indeed, I would urge that it be
    rejected as a precedent for any case in the future.
        I trust that in future cases both parties, whether in the
    Majority or Minority, will work together to establish a
    procedural framework in which this most serious matter can be
    considered fairly and in a timely fashion.

                                ADDITIONAL VIEW

        The legacy of the protection of voting rights for
    minorities in the United States was a hard-fought battle that
    saw its culmination in the adoption of the Voting Rights Act of
    1965. Despite entreaties to the contrary, there has been no
    demonstration from the Majority that any changes to our current
    registration laws--proof or documentation of citizenship to
    register to vote, or to allow states to require Social Security
    numbers on voting registration applications--are needed or
    necessary to ensure the accuracy and validity of our nation's
    elections.
        We all want open, honest and fair elections and
    registration processes. What should not happen, as a result of
    this decision, is the further disenfranchisement of voters by
    even more restrictive registration requirements. This would
    only be the beginning of the recurrence of poll watchers,
    literacy tests, and poll taxes--other relics of a bygone era
    that died with the adoption of the Voting Rights Act of 1965.
    These, and other further and unwarranted restrictions upon the
    voting rights of all hinder the progress and freedom of not
    just minorities, but of all Americans.

                                                  Carolyn C. Kilpatrick