[House Report 108-207]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    108-207

======================================================================



 
            DISMISSING THE ELECTION CONTEST AGAINST ED CASE

                                _______
                                

   July 15, 2003.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

  Mr. Ney, from the Committee on House Administration, submitted the 
                               following

                              R E P O R T

                       [To accompany H. Res. 317]

    The Committee on House Administration, having had under 
consideration an original resolution, dismissing the election 
contest against Ed Case, report the same to the House with the 
recommendation that the resolution be agreed to.

                            COMMITTEE ACTION

    On July 9, 2003, by voice vote, a quorum being present, the 
Committee agreed to a motion to report the resolution favorably 
to the House.

                      COMMITTEE OVERSIGHT FINDINGS

    In compliance with clause 3(c)(1) rule XIII of the Rules of 
the House of Representatives, the Committee states that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

            STATEMENT ON BUDGET AUTHORITY AND RELATED ITEMS

    The resolution does not provide new budget authority, new 
spending authority, new credit authority, or an increase or 
decrease in revenues or tax expenditures. Thus, clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives, and 
the provisions of section 308(a)(1) of the Congressional Budget 
Act of 1974 are not applicable.

                           STATEMENT OF FACTS

    On January 31, 2003, Steve Tataii (``contestant'') filed 
with the Clerk of the House of Representatives a Notice of 
Contest captioned ``Steve Tataii--Contestant v. Ed Case--
Contestee.'' The document, prepared by the contestant, was 
filed pursuant to the Federal Contested Elections Act 
(``FCEA'').\1\
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    \1\ 2 U.S.C. Sec. Sec. 381-96.
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    The chronology of events that culminated with the 
contestant filing his Notice of Contest is set forth below:
    The Hawaii Democratic Party held its primary election for 
the Second Congressional District on September 21, 2002. The 
contestant was the only candidate to challenge the late 
Representative Patsy Mink in the Democratic primary. The final 
primary results showed Representative Mink with 67,246 votes 
(72.6% of the total vote), while the contestant received 14,178 
votes (15.3%).
    On September 27, 2002, the contestant filed an election 
contest with the Hawaii Supreme Court. Citing Section 11-117 of 
the Hawaii Revised Statutes,\2\ the contestant asserted that 
Representative Mink's poor health at the time of the primary 
election required her to voluntarily withdraw from the election 
or be disqualified by Hawaii election officials or Democratic 
Party officials, which would have resulted in the contestant 
becoming the Democratic nominee. The Hawaii Supreme Court 
concluded that ``Section 11-117 * * * allows, but does not 
mandate, a candidate to withdraw from an election and allows, 
but does not mandate, the Chief Election Officer to seek a 
candidate's disqualification. Section 11-117 * * * does not 
require a political party to seek a candidate's 
disqualification.'' \3\ Therefore, the Court ruled against the 
contestant, holding that he ``failed to show mistakes or errors 
that could change the result of the contested primary 
election.'' \4\
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    \2\ ``(a) Any candidate may withdraw not later than 4:30 p.m. on 
the day immediately following the close of filing for any reason and 
may withdraw after the close of filing up to 4:30 p.m. on the twentieth 
day prior to an election for reasons of ill health. When a candidate 
withdraws for ill health, the candidate shall give notice in writing to 
the chief election officer if the candidate was seeking a congressional 
or state office, or the candidate shall give notice in writing to the 
county clerk if the candidate was seeking a county office. The notice 
shall be accompanied by a statement from a licensed physician 
indicating that such ill health may endanger the candidate's life.
    ``(b) On receipt of the notice of death, withdrawal, or upon 
determination of disqualification, the chief election officer or the 
clerk shall inform the chairperson of the political party of which the 
person deceased, withdrawing, or disqualified was a candidate. When a 
candidate dies, withdraws, or is disqualified after the close of filing 
and the ballots have been printed, the chief election officer or the 
clerk may order the candidate's name stricken from the ballot or order 
that a notice of the death, withdrawal, or disqualification be 
prominently posted at the appropriate polling places on election day.''
    \3\ Tataii v. Yoshima, No. 25353 (Haw. Oct. 3, 2002).
    \4\ Id. The contestant appealed this decision to the United States 
Supreme Court. On March 3, 2003, the U.S. Supreme Court denied the 
contestant's petition for writ of certiorari. 123 S. Ct. 1363 (2003).
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    Representative Mink died on September 28, 2002. Pursuant to 
a proclamation issued by Hawaii's chief election officer, 
Representative Mink's name remained as the Democratic nominee 
on the ballot for the November 5, 2002 general election, where 
she received 56 percent of the votes cast. (The contestant did 
not mount a write-in campaign for the general election.)
    A special election was then held on November 30, 2002 to 
determine who would serve the remainder of Representative 
Mink's term in the 107th Congress. The contestant filed as a 
candidate for the special election, in which he received 28 
votes (0.1% of the vote total). Ed Case won the special 
election with 23,576 votes (51%).
    On January 4, 2003, the contestant was one of 44 candidates 
in a special election to determine who would hold the Second 
Congressional seat for the 108th Congress. The results of the 
special election released by the Hawaii Office of Elections 
showed that the contestee (D) received 33,002 (43.2%) of the 
76,328 votes cast, giving him a plurality of the total vote. 
The contestant received nine (9) votes (0.001%). The contestee 
was sworn in on January 7, 2003 as a Member of the House of 
Representatives based on the uncertified results of the special 
election.
    On January 24, 2003, the contestant filed a complaint 
pursuant to state law with the Hawaii Supreme Court contesting 
the results of the special election. Under Hawaii law, the 
State chief election officer cannot certify the results of an 
election until any contests filed in State court relating to 
that election are resolved and the time for appealing the 
decisions has expired.\5\ Thus, the Hawaii Office of Elections 
had yet to certify the contestee as the winner of the Second 
Congressional District seat at the time that the contestant 
filed his Notice of Contest.\6\
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    \5\ Haw. Rev. Stat. Sec. 11-156.
    \6\ On May 22, 2003, the Hawaii Supreme Court dismissed the 
contestant's election contest challenging the results of the January 4, 
2003 special election. Tataii v. Yoshina, No. 25599 (Haw. May 22, 
2003). Mr. Case was certified as the winner of Hawaii's Second 
Congressional seat on May 23, 2003.
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                                STANDING

    The first issue is whether the FCEA permits the contestant 
to file a Notice of Contest, i.e., whether the contestant has 
standing to bring such action as a contestant. To have standing 
under the FCEA, a contestant must have been a candidate for 
election to the House of Representatives in the last preceding 
election and claim a right to the contestee's seat.\7\
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    \7\ U.S.C. Sec. 382(a).
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    As to the first prong, the contestant's name was printed as 
a candidate for the Second Congressional District on the 
official ballot for the January 4, 2003 special election. And 
as to the second, the contestant claims a right to the 
contestee's seat and sets forth the reasons why he believes he 
should have been the Democratic nominee on the ballot for the 
November 2002 general election. It is unclear, however, whether 
acontestant may claim a right to a seat, and thus have 
standing, when the basis of his or her complaint relates to the conduct 
of a primary election, not the general election. Nevertheless, the 
Committee opts not to resolve whether the contestant has standing, 
instead choosing to dispose of this election contest on other grounds.

                             TIMING/NOTICE

    The Notice of Contest appears to have been served upon 
Congressman Case and filed within the appropriate time 
strictures of the FCEA.\8\
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    \8\ The FCEA states that the filing of a Notice of Contest will be 
considered timely only if done ``within thirty days after the result of 
such election shall have been declared by the officer or Board of 
Canvassers authorized by law to declare such result.'' Id. (emphasis 
added). As mentioned above in the Statement of Facts, when the 
contestant filed his Notice of Contest, the chief election officer for 
Hawaii had yet to officially certify the contestee as the winner of the 
seat for the Second Congressional District because the contestant's 
election contest filed pursuant to state law had not yet been resolved 
by the Hawaii Supreme Court. The question, therefore, has been raised 
whether this matter was ripe; i.e., whether Hawaii's chief election 
officer must have first certifed the election result before the 
Committee could consider the contestant's Notice of Contest.
    The Committee finds that an official certification issued pursuant 
to state law by a state's chief election official is not always 
necessary for an election result to be considered ``declared'' for 
purposes of the FCEA (although a certification will typically be the 
dispositive event triggering the FCEA's 30-day filing window). Rather, 
the Committee concludes that an election result may be considered to 
have been ``declared'' where, as in the instant case, the House has 
sworn in a member based upon the uncertified results provided by the 
relevant state's chief election officer.
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                          RESPONSE BY MR. CASE

    The contestee did not file a formal answer in response to 
the Notice of Contest. Nevertheless, the burden remains upon 
the contestant to provide credible allegations to the House 
sufficient to support a claim under the FCEA.\9\
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    \9\ Id. Sec. 385.
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                            BASIS OF CONTEST

    In the Notice of Contest, the contestant asserts that 
former Representative Patsy Mink was not qualified to be a 
candidate for the Democratic Primary for the Second 
Congressional District of Hawaii due to her poor health at the 
time of the primary. According to the contestant, Section 11-
117 of the Hawaii Revised Statutes \10\ required the state's 
Chief Election Officer, Mr. Dwayne D. Yoshina, to deem 
Representative Mink as incapacitated and thus disqualify her as 
a primary candidate, a situation that would have left the 
contestant as the unopposed candidate for the Democratic 
nomination. The contestant contends therefore that he should 
have been declared the Democratic nominee by default, and that 
his status as the party's nominee would have resulted in an 
inevitable victory in the general election because of 
``Hawaii's traditional Democratic voting for this seat.'' The 
contestant alleges that Mr. Yoshina's failure to disqualify 
Representative Mink was part of ``a self-serving set up * * * 
orchestrated by the incompetent and corrupt'' party officials 
``to manufacture the two Special elections'' so that candidates 
favored by such officials would have an advantage.
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    \10\ See supra note 2.
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    The contestant also asserts that the January 4, 2003 was 
``most likely rigged'' by state party officials. He bases this 
claim on the fact that while he garnered 14,178 votes in the 
primary election, he received only nine (9) votes in the 
special election.

                                ANALYSIS

    By its very terms, the FCEA does not contemplate 
considering Notices of Contest that are based on the conduct of 
primary elections. The statute defines ``election'' as ``an 
official general or special election to choose a Representative 
in * * * Congress, but that term does not include a primary 
election, or a caucus or convention of a political party.'' 
\11\ Thus, as a general rule, general or special elections may 
be contested using the procedures set forth in the FCEA, while 
primary elections may not.
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    \11\ 2 U.S.C. Sec. 381(1) (emphasis added).
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    The locus of the contestant's Notice of Contest centers not 
on the January 4, 2003 special election but on the conduct of 
the September 21, 2002 Democratic Primary. Though he alleges 
that the special election was rigged, he offers no proof of 
vote tampering, nor does he argue that he would have won the 
special election had there been no alleged vote rigging. 
Rather, the contestant's claim to why he is entitled to the 
Second Congressional seat is based chiefly on his argument that 
Representative Mink should have been disqualified as a primary 
candidate, that he should have been declared the Democratic 
nominee by default, and that as the nominee, he would have been 
the inevitable general election winner.
    Consequently, the Committee concludes that the basis for 
the contestant's Notice of Contest falls outside the scope of 
the FCEA. For this reason, the Committee holds that the 
contestant's arguments regarding the conduct of the Democratic 
Primary election in Hawaii do not constitute grounds sufficient 
to change the result of the election and, therefore, recommends 
that this election contest be dismissed.

                                
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