[House Report 108-207]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 108-207
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DISMISSING THE ELECTION CONTEST AGAINST ED CASE
_______
July 15, 2003.--Referred to the House Calendar and ordered to be
printed
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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.