[House Report 110-178]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-178

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



 
       DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF 
    REPRESENTATIVE FROM THE FIFTH 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. 463]

    The Committee on House Administration, having had under 
consideration an original resolution dismissing the election 
contest relating to the office of Representative from the Fifth 
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 FIFTH CONGRESSIONAL DISTRICT OF 
                                FLORIDA

    The Committee on House Administration, having had under 
consideration an original resolution, dismissing the election 
contest against Virginia ``Ginny'' Brown-Waite, 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, John Russell (Contestant) filed a 
Notice of Contest with the Clerk of the House of 
Representatives captioned ``John Russell, Contestant, v. 
Virginia `Ginny' Brown-Waite, Contestee'' pursuant to the 
Federal Contested Elections Act (FCEA).\1\ Contestant was the 
Democratic nominee for the seat in the Fifth Congressional 
District of Florida on November 7, 2006. The other principal 
candidate for the Fifth Congressional District was incumbent 
Virginia ``Ginny'' Brown-Waite (Contestee). On November 20, 
2006, the Florida Elections Canvassing Commission certified the 
results: Contestee received 162,421 votes and Contestant 
received 108,959 votes. The Florida Secretary of State Sue Cobb 
issued the Certificate of Election certifying the contestee as 
the winner of the Fifth 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 Fifth Congressional District 
of the State of Florida are incorrect because of purported 
irregularities associated with the electronic voting machines 
used the election. Specifically, Contestant avers that the 
electronic voting machines did not record votes cast 
accurately. 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 further contends that an accurate recount 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.

                                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.\2\ Contestant was the Democratic nominee and 
his name appeared as a candidate for the Fifth Congressional 
District on the official ballot for the November 7, 2006 
election, thereby satisfying the standing requirement.
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    \2\ 2 U.S.C. Sec. 382(a)
---------------------------------------------------------------------------

                             TIMING/NOTICE

    The Notice of Contest has been served upon 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 
her motion, Contestee seeks to have the 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 FCEA filing requirements.

                                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 in Pasco County, Florida. The official certified 
vote totals for Pasco County's 151 precinct show Contestant 
receiving 35 votes and Contestee receiving 46 votes. 
Contestant, after conducting his own canvass and affidavit 
gathering process of the individuals who had cast ballots in 
precinct 151, reveals that he received 41 votes while Contestee 
received only 40 votes. Contestant believes that because these 
6 votes show a discrepancy in the Election Day vote totals, 
there is sufficient evidence to place in doubt the election 
results for Florida's Fifth Congressional District. However, 
Contestee was certified as the winner of the election by 53,462 
votes, far exceeding the 6 vote differential proffered by 
Contestant. The allegations cited by Contestant are 
unsubstantiated speculation and do not constitute grounds 
sufficient to change the result of the election. Even if 
Contestant can prove the facts in support of his claim, he has 
not provided evidence sufficient to entitle him to relief.
    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. In 
particular, Contestant argues that only with a voter verified 
paper audit trail: (1) could a voter determine whether the vote 
in 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 
benefits 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.

                               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 Fifth 
Congressional District and declared Virginia ``Ginny'' Brown-
Waite 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 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 if her 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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