[House Report 110-175]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-175

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



 
       DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF 
 REPRESENTATIVE FROM THE TWENTY-FIRST CONGRESSIONAL DISTRICT OF FLORIDA

                                _______
                                

June 6, 2007.--Referred to the House Calendar and ordered to be printed

                                _______
                                

Mr. Brady of Pennsylvania, from the Committee on House Administration, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                       [To accompany H. Res. 459]

    The Committee on House Administration, having had under 
consideration an original resolution dismissing the election 
contest relating to the office of Representative from the 
Twenty-first Congressional District of Florida, reports the 
same to the House with the recommendation that the resolution 
be agreed to.

   DISMISSING THE ELECTION CONTEST IN THE TWENTY-FIRST CONGRESSIONAL 
                          DISTRICT OF FLORIDA

    The Committee on House Administration, having had under 
consideration an original resolution dismissing the election 
contest against Lincoln Diaz-Balart, reports the same to the 
House with the recommendation that the resolution be agreed to.

                            COMMITTEE ACTION

    On, May 8, 2007, 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 3, 2007, Frank J. Gonzalez (Contestant) filed a 
Notice of Contest with the Clerk of the House of 
Representatives captioned ``Frank J. Gonzalez, Contestant, v. 
Lincoln Diaz-Balart, Contestee pursuant to the Federal 
Contested Elections Act (``FECA'').\1\ Contestant was the 
Democratic nominee for the seat in the Twenty-First 
Congressional District of Florida on November 7, 2006. The 
other principal candidate for the Twenty-First Congressional 
District was incumbent Republican Lincoln Diaz-Balart 
(Contestee). On November 20, 2006, the Florida Elections 
Canvassing Commission certified the results: Contestee received 
66,784 votes and Contestant received 45,522 votes. The Florida 
Secretary of State issued the Certificate of Election 
certifying Contestee as the winner of the Twenty-First 
Congressional District seat on November 22, 2006.
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    \1\ 2 U.S.C. Sec. 381-96.
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                            BASIS OF CONTEST

    In the Notice of Contest, Contestant alleges that the 
official election results for the Twenty-First Congressional 
District of the State of Florida are incorrect because of 
irregularities associated with the electronic voting machines 
used in the election. Specifically, Contestant avers that the 
electronic voting machines used did not accurately record votes 
cast. In support of this argument, he asserts that the 
electronic voting machines produced unreliable and incorrect 
results based on a theory that these machines were hacked or 
had their data tabulations altered by electronic means. 
Contestant also alleges that an accurate recount of the votes 
could never be conducted because the electronic voting machines 
used in this election were not equipped with a verified voter 
paper audit trail. Further, Contestant contends the vote totals 
are unreliable based on his assertions that the Supervisor of 
Elections for Broward County failed to comply with certain 
testing and fielding requirements for electronic voting 
machines pursuant to Florida law.

                                STANDING

    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 Contestee's 
seat.\2\ In the instant case, Contestant was the Democratic 
nominee and his name appeared as a candidate for the Twenty-
First Congressional District on the official ballot for the 
November 7, 2006 election, satisfying the standing requirement.
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    \2\ 2 U.S.C. Sec. 382(a).
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                             TIMING/NOTICE

    The Notice of Contest has been served upon the Contestee 
and filed with the Clerk of the House of Representatives on 
December 20, 2006.

                         RESPONSE BY CONTESTEE

    On January 17, 2007, Contestee filed a Motion to Dismiss 
Contest of Election, in response to Contestant's notice 
contesting the results of the 2006 General Election for the 
Twenty-First Congressional District of the State of Florida. In 
his motion, Contestee seeks to have this election contest 
dismissed based upon Contestant's failure to timely file the 
Notice of Contest with the Clerk of the House of 
Representatives pursuant to the filing requirements under FCEA.

                                ANALYSIS

    To survive a motion to dismiss, Contestant must proffer 
allegations that, if proven, would have altered the election 
outcome. In his Notice of Contest, Contestant presented the 
Committee on House Administration (Committee) with allegations 
that the electronic voting machines used in the election did 
not record votes accurately. In support of his assertions, 
Contestant relies on affidavits collected from voters in 
Precinct 151, Pasco County by John Russell who was a candidate 
for United States Representative for Florida's Fifth District. 
Like Contestant, John Russell also filed a Notice of Contest 
before this Committee where he maintains that the electronic 
voting machines used in his election recorded votes 
inaccurately. Contestant provides the Committee with results of 
Russell's own canvass and affidavit gathering process of the 
individuals who had cast ballots in precinct 151, which he 
believes revealed a discrepancy in the Election Day vote 
totals. Russell maintains that this discrepancy is evidence of 
inaccurate vote totals and sufficient to place in doubt the 
election results for Florida's Fifth Congressional District. 
Contestant contends that the evidence obtained by Russell also 
places his election results in doubt because electronic voting 
machines without a verified paper audit trail were also used in 
the Twenty-First District and, therefore, must have 
inaccurately recorded the votes.
    Contestant's reliance on allegations of electronic voting 
machine error in another Congressional District is irrelevant 
and not persuasive. The precinct Contestant refers to is Pasco 
County Florida's 151 precinct and is located in Florida's Fifth 
Congressional District, not in Florida's Twenty-First District. 
Even if Contestant is able to prove the voting machines used in 
precinct 151 did not record votes accurately, it does not 
establish that the electronic voting machines used in 
Contestant's race are inherently unreliable and failed to 
record votes accurately.
    Contestant also alleges that the intent of the voters and 
the vote tally could not be accurately discerned because the 
electronic voting machines used in the instant election were 
not equipped with a voter verified paper audit trail. 
Specifically, Contestant argues that only with a voter verified 
paper audit trail: (1) could a voter determine whether the vote 
which he or she cast reflected the vote that was intended to be 
cast; and (2) could election results be validated. The fact 
that Contestant would have preferred that voters be given the 
benefit of a verified paper audit trail adds no weight to his 
claim.
    In November 2006, numerous state and federal candidates 
were elected on electronic voting machines that were not 
equipped with a verified paper audit trail. For decades states 
have used mechanical and electronic voting equipment that does 
not provide for a paper audit trail. These systems have not 
been demonstrated to be inherently unreliable. States by law 
may choose to require a paper audit trail, but the mere absence 
of a paper trail is not a basis for setting aside an election. 
A contestant's musing about the vulnerability of a voting 
system to hacking or fraudulent manipulation does not form the 
basis for a cognizable claim to the office. Such claims are in 
essence no different than a claim that the ballots boxes could 
have been stuffed in an election that used paper ballots. A 
notice of contest must contain specific credible allegation(s) 
of misconduct or irregularity in the election in order to 
overcome the presumption of regularity.
    Additionally, Contestant accuses the Supervisor of 
Elections for Broward County of failing to comply with Florida 
law relating to the testing and fielding for electronic voting 
machines. Contestant's allegation of misconduct and non-
compliance by certain election officials is irrelevant unless 
it can be shown to have affected the outcome of the election. 
Contestant's personal lack of confidence in how the election 
was administered does not form the basis for a cognizable claim 
to the office. While Contestant may believe the Supervisor of 
Elections for Broward County did not perform certain voting 
machine testing, he failed to provide any information 
demonstrating that Broward County election officials violated 
any laws associated with machine testing, or that these alleged 
violations affected the outcome. Contestant's allegations are 
no more than unsupported speculation and his claims do not cast 
sufficient doubt on the results of the election to merit 
investigation. For the Committee to come to any other 
conclusion would be to remove the presumption of regularity 
that attaches to the state certification and would make all 
elections open to contest and investigation based on mere 
conjecture or speculation.

                               CONCLUSION

    For the reasons discussed above, the Committee therefore 
concludes that this contest should be dismissed.

                             MINORITY VIEWS

    While we agree with the majority that this election contest 
is wholly without merit, and should be dismissed without 
further delay, we submit these views because we believe that, 
in addition to the numerous substantive defects of this 
contest, its procedural failings are also fatal and sufficient 
to warrant dismissal on their own. Pursuant to the FCEA, a 
sufficient and timely Notice of Contest must be filed with the 
Clerk of the House and served upon Contestee before the 
Committee can proceed to review and make determinations 
regarding the allegations and grounds of an election contest. 
FCEA requires contestants to file their notice of contest with 
the Clerk of the House within 30 days of the election results 
having been declared. This rule allows members and their 
constituents to know the date beyond which the election can no 
longer be challenged.
    Section 382(a) of the FCEA:

          (a) Filing of notice. Whoever, having been a 
        candidate for election in the last preceding election 
        and claiming a right to such office, intends to contest 
        the election of a Member of the House of 
        Representatives, shall, 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, file with the Clerk and serve upon 
        the contestee written notice of his intention to 
        contest such election. (emphasis added)

    Under Florida law, the Florida Elections Canvassing 
Commission is the body authorized to declare all election 
results. On November 20, 2006, the Florida Canvassing 
Commission certified the results of the election for the 
Twenty-First Congressional District and declared Lincoln Diaz-
Balart the winner, thereby triggering the 30-day time period 
for filing an election contest with the House of 
Representatives. Accordingly, anyone wishing to contest the 
results so declared was obligated to do so by filing a contest 
with the Clerk on or before December 20, 2006. Though 
Contestant's Notice of Contest and certificate of service is 
dated December 20, 2006, this is not the date it was filed.
    The transaction log for the vendor that handles mail 
delivery for the House of Representatives reveals that the 
Notice of Contest was not received by the House until December 
28, 2006. It was not received by, that is filed with, the Clerk 
until January 3, 2007. This is outside of the 30-day window the 
statute allows for filing. Simply mailing the contest within 
the 30-day period does not constitute filing, and is not 
sufficient to meet the statutorily imposed deadline.
    While mailing does suffice for service of other kinds of 
pleading, it does not suffice for the initial filing of the 
contest. We believe the proper interpretation of FCEA requires 
the document actually be in the possession of the Clerk within 
the prescribed period. Section 382 clearly distinguishes 
between filing and service--requiring that a notice of contest 
be filed with the Clerk within 30 days and served on Contestee 
within this time period. This distinction exists for a reason 
and is reiterated in Section 384 which allows mailing within 
the required period to suffice for other pleadings, but 
explicitly states that these modes of service are acceptable 
for pleadings other than the notice of contest:

    (a) Modes of service. Except for the notice of contest, 
every paper required to be served upon the attorney 
representing the party, or is not represented by an attorney or 
upon a party shall be made:

           *       *       *       *       *       *       *

          (3) by mailing it addressed to the person to be 
        served at this residence or principal office. Service 
        by mail is complete upon mailing.
    (b) Filings of papers with clerk. All papers subsequent to 
the notice of contest required to be served upon the opposing 
party shall be filed with the Clerk either before service or 
within a reasonable time thereafter.

    Obligating actually filing, as opposed to simply mailing, 
the notice of contest within 30 days allows all Members to know 
with certainty the date beyond which their elections can no 
longer be challenged. To allow contests filed after this date 
to be considered creates uncertainty for Members and extends 
the period in which they can be challenged. It also contradicts 
the plain language of the statute, and should not be permitted.

                                   Vernon J. Ehlers.
                                   Daniel E. Lungren.
                                   Kevin McCarthy.

                                  
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