[House Report 110-176]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-176

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



 
       DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF 
REPRESENTATIVE FROM THE TWENTY-FOURTH 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

                       [To accompany H. Res. 461]

  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-fourth Congressional District of Florida, report the 
same to the House with the recommendation that the resolution 
be agreed to.

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

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

                            COMMITTEE ACTION

    On, May 8, 2007, by a 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) of 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 December 20, 2006, Clint Curtis (Contestant) filed a 
Notice of Contest with the Clerk of the House of 
Representatives pursuant to the Federal Contested Elections Act 
(FCEA).\1\ Contestant ran as the nominee of the Democratic 
Party for the office of Representative to the United States 
Congress representing the Twenty-Fourth Congressional District 
of the State of Florida in November 7, 2006 election. The other 
principal candidate for the Twenty-Fourth Congressional 
District was incumbent Republican Tom Feeney (Contestee). On 
November 20, 2006, the Florida Elections Canvassing Commission 
\2\ certified the results: Contestee received 123,795 votes and 
Contestant received 89,863 votes, a margin of 33,932 votes. In 
addition to the Notice of Contest, Contestant also filed an 
election contest with the Circuit Court of Leon County on 
November 30, 2006.
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    \1\ 2 U.S.C. Sec. 381-96.
    \2\ Title IX. Electors and Elections (Chapters 97-109) Sec. 102.111 
(1) of the Florida Code provides that ``The Elections Canvassing 
Commission shall, as soon as the official results are compiled from all 
counties, certify the returns of the election and determine and declare 
who has been elected for each federal, state, and multicounty office.'' 
The Canvassing Commission consists of the Governor and two members of 
the Cabinet selected by the Governor.
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                            BASIS OF CONTEST

    In his Notice of Contest, Contestant alleges that the 
official election results for the Twenty-Fourth Congressional 
District of the State of Florida are incorrect because of 
alleged irregularities associated with the electronic voting 
machines used in the election. Specifically, Contestant avers 
that the electronic voting machines did not record accurately 
the votes cast. In support of this argument, Contestant asserts 
that the electronic voting machines produced unreliable and 
incorrect results based on his belief that these machines were 
hacked and the software manipulated. Contestant further 
contends that an accurate count of the votes cast can never be 
discerned because the electronic voting machines used in this 
election were not equipped with a verified voter paper audit 
trail. Contestant also contends that the failure of local 
boards of election to put into place necessary procedural 
safeguards compromised the election results.

                                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 the 
contestee's seat.\3\ Contestant was the Democratic nominee and 
his name appeared as a candidate for the Twenty-Fourth 
Congressional District on the official ballot for the November 
7, 2006 election, thereby satisfying the standing requirement.
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    \3\ 2 U.S.C. Sec. 382(a).
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                             TIMING/NOTICE

    The Notice of Contest appears to have been served upon 
Congressman Feeney and filed within the prescribed time periods 
of the FCEA.

                         RESPONSE BY CONTESTEE

    On January 19, 2007, Contestee filed a Motion to Dismiss 
Contest of Election in response to Contestant's Notice of 
Contest challenging the results of the 2006 General Election 
for the Twenty-Fourth Congressional District of the State of 
Florida. Contestee maintains that the contest against him 
should be dismissed because Contestant failed to claim a right 
to the office and support that claim with specific credible 
allegations of irregularities or fraud that if proven true 
would be sufficient to change the result of the election.

                STANDARD FOR GRANTING MOTION TO DISMISS

    The House of Representatives has the constitutionally 
vested power to judge its own elections.\4\ The FCEA sets forth 
procedures under which a Contestant may bring a contest to the 
House of Representatives. Under the FCEA, it is not sufficient 
for a Contestant merely to allege irregularities or fraud in an 
election. The Contestant must claim a right to the office.\5\ 
The contestant must support this claim with specific credible 
allegations of irregularity or fraud that if proven true, would 
entitle the contestant to the office.\6\ Unless a contestant 
credibly claims in his Notice of Contest a right to the office, 
the House of Representatives will dismiss the Contest.\7\
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    \4\ U.S.C.A Const. Art. 1, Sec. 
    \5\ 2 U.S.C. Sec. 382.
    \6\ See, e.g. Pierce v. Pursell, H. Rep. 95-245 (1977).
    \7\ Anderson v. Rose, H. Rep. 104-852 (1996).
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                                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 a series of 
alleged irregularities in the conduct of the election that he 
contends support his claim that he lost due to errors in the 
administration of the election. These irregularities fall into 
the following five categories:
          1. Election Equipment
          2. Polling Data
          3. Election Administration Errors
          4. Affidavit Progression
          5. Software Source Code Disclosure
    Although Contestant complains that the election was not 
well conducted, those charges fall well short of credibly 
suggesting that Contestant is entitled to the office. As 
discussed below, those claims, taken individually or 
collectively, provide no basis upon which the House of 
Representatives could conclude that the Contestant is entitled 
to the office. Contestant has not demonstrated to the 
Committee's satisfaction that this contest is anything more 
than a reflection of his general dissatisfaction with how the 
election was administered. Lacking from his contest is a 
credible claim that absent the alleged irregularities he would 
have won the election. Contestant's claims are built on 
shifting sands of speculation and conjecture and do not provide 
a basis for the Committee proceeding with an investigation.

Election equipment

    While Contestant identifies several problems in the 
administration of the election that he contends may have 
contributed to an inaccurate and unreliable election result, he 
also maintains that a likely cause of his defeat was the 
electronic voting machines used in the Twenty-Fourth 
Congressional District. The voting machines used in this 
election to capture the votes cast employed one of two 
technologies: Direct Recording Equipment (DRE) and Optical 
Scan. In describing the DRE voting machines used in the 
election, Contestant maintains that these machines had an 
obvious unexplained bias toward Contestee in the way votes were 
recorded. The only evidence Contestant offers to support this 
claim is the historical voting patterns in the district. 
Contestant claims that he did not do as well as a hypothetical 
Democrat in the district would do. The very nature of this 
claim demonstrates how speculative it is. There are many 
possible explanations for the purported variance and there is 
no reason to believe that the DRE voting equipment accounted 
for the difference. Contestant's claims regarding the optical 
scan equipment are similarly deficient. Merely suggesting that 
voting equipment may be subject to tampering or is not 
inherently reliable is insufficient grounds for contesting an 
election.

Polling data

    Contestant relies on polling data collected in October 
2006, a month before the election, to show that the race at 
that point was within 2-3 percentage points. The fact that 
there was a poll a month before the election suggesting that 
Contestant was behind by a smaller margin than he eventually 
lost by is hardly evidence that Contestant won the election. 
Such evidence simply does not support a claim that Contestant 
is entitled to the office.

Election administration errors

    Contestant alleges that election administrators failed to 
perform their duties properly and these failures affected the 
outcome of the election. The alleged errors fall into two 
categories: failure to implement safeguards and failure to 
follow required procedures. Contestant asserts that certain 
voting machines used in Volusia County, Florida, for the 
Twenty-Fourth Congressional District were not properly 
certified under Florida law. Even assuming that this allegation 
was true, Contestant has failed to show that the outcome of the 
election was affected by the failure to comply completely with 
the certification process. To maintain a contest it is not 
sufficient to simply assert, or even prove, that some state 
laws or processes were not followed. Contestant must credibly 
claim and support with specific allegations how the failure to 
comply affected the outcome of the election. Contestant's claim 
never amounts to more than conjecture and is insufficient to 
support an election contest.
    Second, Contestant claims that certain pre-election 
procedures were not followed. Initially, he cites allegations 
by individuals and organizations detailing incidents of voter 
registration denials, missing or destroyed audit logs, and road 
blockages and detours preventing voters from getting to the 
polls. These allegations, even if proven true, do not justify 
overturning an election that the Contestee won by a margin of 
33,932. Next, Contestant argues in the Notice of Contest that 
the integrity of certain ballots was compromised. In Volusia 
County, Contestant claims that he discovered discrepancies 
during a ballot inspection where certain seals on the ballot 
bags were either missing or did not match up with numbers on 
the ballot reconciliation forms. Again, Contestant has failed 
to show the number of ballots affected comes anywhere close to 
the margin by which he was defeated.
    In addition to purported discrepancies with ballot bag 
seals, Contestant alleges discrepancies exist between the 
``Statement of Votes Cast'' and the ``All Voter Disk Data'' 
provided by the Volusia County Supervisor of Elections. 
Contestant states that the statement of votes cast shows that 
45,021 ballots were cast on Election Day, but the All Voter 
Disk Data reflects only 44,773 people voting at the polls on 
Election Day. While Contestant agrees that a 248 vote 
difference is rather small, he still believes that the fact 
that a discrepancy exists is an indication of greater problems 
in the administration of the election in Volusia County. We do 
not find that the claimed errors or misconduct, if proven true, 
would change the election outcome.
    In reviewing actions by election administrators, it is well 
established that the Committee does not consider a mere claim 
of election official error sufficient to sustain a contest 
unless that error is of such magnitude that it likely affected 
the outcome of the election. ``Our respect for the States and 
State election officials mandates that these `assumptions of 
regularity' not be discarded based solely on a `[c]ontestant's 
bare allegations of irregularity,' election officials are 
presumed to have acted in accordance with State law, and errors 
will not be imputed without convincing evidence.'' \8\ While 
there may be some administrative errors that occurred on or 
before Election Day, the allegations cited by Contestant do not 
cast sufficient doubt on the election results to merit this 
Committee's further consideration.
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    \8\ See Anderson v. Rose, H. Rep. No. 104-852 (1996) quoting McCuen 
v. Dickey, H. Rep. No. 103-109 at 6 (1993).
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Affidavit progression and vote flipping

    Contestant also claims that the software used to record the 
votes contained malicious source code. Contestant believes that 
the electronic voting machines used in this election contained 
vote flipping software, hidden in the source code, to 
manipulate the election results in Contestee's favor. Because 
Contestant offers no factual basis for this claim, it must be 
dismissed. Contestant's claim can only generously be described 
as conjecture. Allowing contests to be brought on such claims 
would overthrow the presumption of regularity that attaches to 
the State elections process and would make every election open 
to contest.

Software source code disclosure

    Contestant suggests that proof of the alleged electronic 
voting machines manipulation can be proven by examining the 
software source code. The fact that an examination of the 
source code might reveal it contained malicious software does 
not relieve Contestant of his obligation to make a credible 
claim that it does. If it did, all elections would be open to 
challenge.

                               CONCLUSION

    The Committee finds that Contestant has failed to make a 
credible and specific claim that he is entitled to the office. 
Contestant's claims amount to no more than raw conjecture and 
speculation unsupported by specific and credible allegations of 
irregularity sufficient to put into doubt the outcome of the 
election. None of the cited irregularities associated with the 
electronic machines or the administration of the Twenty-Fourth 
Congressional District election justify the Committee 
proceeding any further with an election contest. The Committee 
finds that Contestant failed to meet the required burden under 
the FCEA.

                                  
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