[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\
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    \1\ See Appendix F.
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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).
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    \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.
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      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
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    \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.)
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    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.
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    \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

                                
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