[House Report 110-355]
[From the U.S. Government Publishing Office]
House Calendar No. 126
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-355
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INTERIM REPORT OF THE SELECT COMMITTEE TO
INVESTIGATE THE VOTING IRREGULARITIES OF
AUGUST 2, 2007
_______
September 27, 2007.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Delahunt, from the Select Committee to Investigate the Voting
Irregularities of August 2, 2007, submitted the following
R E P O R T
CONTENTS
Page
Introduction: Creation of the Select Committee................... 1
Status of the Select Committee's Investigation................... 3
Areas of Investigation........................................... 4
Recommendations to the House..................................... 7
Committee Consideration.......................................... 7
Appendix: House Rules Related to Voting.......................... 7
Introduction: Creation of the Select Committee
On August 3, 2007, the House by voice vote, agreed to H.
Res. 611, creating the Select Committee to Investigate the
Voting Irregularities of August 2, 2007 (the ``Select
Committee''). The resolution bestowed upon the Select Committee
authority to ``investigate the circumstances surrounding the
record vote requested by the gentleman from California (Mr.
Lewis) on the motion to recommit to H.R. 3161, including the
Chair's ruling over the objections of the Parliamentarian.''
The Select Committee was directed in the resolution to make an
interim report to the House not later than September 30, 2007,
and a final report not later than September 15, 2008,
``regarding the actions of any Members, officers, or employees
of the House engaged in the disenfranchisement of Members in
voting on the question; and recommending changes to the rules
and procedures of the House of Representatives necessary to
protect the voting rights of the constitutionally elected
Members chosen by the people of the United States of America.''
The House's agreement to the resolution on August 3
followed a sequence of events on August 2 related to Roll Call
Vote No. 814 on the motion to recommit H.R. 3161 with
instructions offered by Representative Jerry Lewis (the
``Motion to Recommit''). Following a voice vote on the Motion
to Recommit, Mr. Lewis demanded the yeas and nays, which were
ordered, and the vote was taken by electronic device. The time
allowed to vote was a minimum of 15 minutes, as provided for by
clause 2(a) of rule XX. Determining as precisely as possible
what happened over the several minutes following the Speaker
pro tempore's announcement, as shown in the Congressional
Record, that two minutes remained for Members to vote on the
Motion to Recommit is one important purpose for which the
Select Committee was established: to report on actions of
Members, officers, or employees of the House engaged in the
disenfranchisement of Members in voting on the question. During
the vote in question the Speaker pro tempore first announced
that there were 214 yeas and 214 nays and that the motion was
not agreed to and the Speaker pro tempore subsequently
announced that the vote was 212 yeas and 216 nays and that the
motion was not agreed to. The proponent of H. Res. 611 has
alleged that the Speaker pro tempore's first announcement of
the vote was erroneous and that the motion had been agreed to
because the electronic voting display read ``FINAL 215-213.''
Determining as precisely as possible what happened over the
several minutes following the Speaker pro tempore's
announcement, asshown in the Congressional Record, that two
minutes remained for Members to vote on the Motion to Recommit is also
important for the other purpose for which the Select Committee was
established: to make recommendations, following its investigation, of
changes to rules and procedures of the House that are needed to protect
Members' voting rights.
The text of the resolution as agreed to by the House is as
follows:
H. Res. 611
In the House of Representatives, U.S.,
August 3, 2007.
Resolved, That--
(1) the Officers of the House of Representatives are
immediately directed to preserve all records, documents,
recordings, electronic transmissions, or other material,
regardless of form, related to the voting irregularities of
August 2, 2007;
(2) there is hereby established a select committee to
investigate the voting irregularities of August 2, 2007
(hereinafter referred to as the ``select committee''). The
select committee shall be comprised of 6 Members, of which 3
Members shall be appointed by the Speaker and 3 by the Minority
Leader. The select committee shall--
(A) investigate the circumstances surrounding the
record vote requested by the gentleman from California
(Mr. Lewis) on the motion to recommit to H.R. 3161,
including the Chair's ruling over the objections of the
Parliamentarian; and
(B) make an interim report to the House not later
than September 30, 2007, and a final report not later
than September 15, 2008--
(i) regarding the actions of any Members, officers,
or employees of the House engaged in the
disenfranchisement of Members in voting on the
question; and
(ii) recommending changes to the rules and procedures
of the House of Representatives necessary to protect
the voting rights of constitutionally elected Members
chosen by the people of the United States of America;
and
(3) the select committee shall have the same powers
to obtain testimony and documents pursuant to subpoena
as authorized under clause 2(m) of rule XI.
On September 5, 2007, the appointments to the Select
Committee made by the Speaker and the Minority Leader pursuant
to H. Res. 611 were published in the Congressional Record. The
Speaker appointed Mr. Delahunt and designated him Chairman of
the Select Committee. The Speaker also appointed Mr. Davis of
Alabama and Ms. Herseth Sandlin to serve on the Select
Committee with Mr. Delahunt. The Minority Leader appointed Mr.
Pence and designated him Ranking Member of the Select
Committee. The Minority Leader also appointed Mr. LaTourette
and Mr. Hulshof to serve on the Select Committee with Mr.
Pence.
Status of the Select Committee's Investigation
During informal preliminary discussions, including one that
took place on September 20, 2007, the Members of the Select
Committee expressed their shared desire to provide a benefit
and service to the House of Representatives through their work
on the Select Committee. The Members agreed to conduct a
thorough, thoughtful, transparent investigation of the
circumstances surrounding House Roll Call Vote No. 814, to act
expeditiously to complete the Select Committee's work and, as
appropriate, to make recommendations to the House that might
contribute to an improvement of the House's rules, procedures,
or practices.
During the preliminary discussions, the Members set the
date of the Select Committee's organizational meeting and first
hearing for September 27, 2007. Individual Members of the
Select Committee agreed to undertake specific assignments in
preparation for the organizational meeting and hearing.
Chairman Delahunt indicated his intention to designate
Representative Davis to be Vice Chairman of the Select
Committee, pursuant to clause 2(d) of rule XI. Later, Ranking
Member Pence designated Representative LaTourette to be Vice
Ranking Member of the Select Committee.
Following a discussion about staff and other resources, the
Members agreed to request House leadership assistance in
obtaining initial resources for the Select Committee.
The Members of the Select Committee also began to prepare a
roadmap of the investigation. All Members expressed strong
interest, in particular, in receiving an orientation to the
House Floor, specifically to the Speaker's Dais, and a viewing,
as a group, of the recording of the Roll Call Vote No. 814.
With this information, the Select Committee will begin to
construct a time line of the circumstances surrounding Roll
Call Vote No. 814.
At the Select Committee's hearing on September 27, the
Select Committee was scheduled to receive testimony from The
Honorable Lorraine Miller, Clerk of the House of
Representatives and Mr. Russell Gore, Legislative Counsel to
the Clerk of the House of Representatives regarding data,
information and other evidence retained by the Clerk's office
related to Roll Call Vote No. 814.
Areas of Investigation
The Select Committee plans to obtain information and hold
hearings necessary to carry out its responsibilities under H.
Res. 611. Four areas of investigation identified by the Select
Committee are described briefly here, though in no way are
these four areas intended to limitthe Select Committee from
following the evidence where it leads as it conducts its investigation.
Persons on the Speaker's Dais and Persons Responsible for
Conducting a Vote. One major area of investigation for the
Select Committee will be to determine who is customarily on the
Speaker's Dais and each person's responsibility, including the
presiding officer. Second, the Select Committee will determine
which of these persons have duties relating to voting in the
House and the Committee of the Whole, what those duties are,
and when, where, and how those duties are carried out. Third,
the Select Committee will determine the relationship between
these persons in their execution of their specific duties
related to voting in the House and the Committee of the Whole.
The Select Committee will also determine what other people,
including employees of the House who are not on the Speaker's
Dais but have duties related to voting in the House and the
Committee of the Whole; what those duties are; and when, where,
and how those duties are carried out. The Select Committee will
also determine the relationship between these persons and the
persons on the Speaker's Dais in their execution of their
specific duties related to voting in the House and the
Committee of the Whole.
The Select Committee will also determine the duties and
authority of Members, leaders, and floor managers related to
voting in the House and the Committee of the Whole.
This information is important to understanding the events
surrounding the voting on the Motion to Recommit and to making
such recommendations to the House as may be necessary to define
and protect Members' voting rights.
Electronic Voting System. A second major area of
investigation for the Select Committee is the operation of the
electronic voting system for recording Members' votes in the
House and the Committee of the Whole and the relationship of
the system's operation to the duties for voting exercised by
individuals on the Speaker's Dais and by individuals not on the
Speaker's Dais. Parts of this investigation will examine:
the tasks for which the electronic voting
system was designed and features of the hardware and
software to accomplish those tasks, including messages
or reports on a vote before, during, and after the
vote;
the protocols for preparing and using the
electronic voting system in the daily sessions of the
House and the Committee of the Whole;
the protocols for individuals on the
Speaker's Dais to interface with the electronic voting
system;
the Members' interface with the electronic
voting system in casting their votes;
the use of information, by Members, leaders,
and floor managers, generated by the electronic voting
system during and after a vote; and
documented instances of mistakes in the
electronic voting system recording or not recording a
Member's vote and accurately reporting vote totals and
of other errors related to voting.
This information is also important to understanding the
events surrounding the voting on the Motion to Recommit and to
making such recommendations to the House as may be necessary to
define and protect Members' voting rights.
Duration of a Vote. A third major area of investigation for
the Select Committee is the duration of a vote and the duties
and authority of the presiding officer and of other persons to
determine when the opportunity of Members to vote closes.
Clause 2(a) of rule XX states: ``* * * the minimum time for a
record vote or quorum call by electronic device shall be 15
minutes.'' Clause 9 of rule XX states: ``The Speaker may reduce
to five minutes the minimum time for electronic voting on any
question * * *.'' (Emphases added.) A vote may last longer than
fifteen minutes, five minutes, (or on occasions when a shorter
time is used, such as two minutes) in order to accommodate
Members who were not yet recorded or who wish to change their
vote or perhaps for other reasons. Clause 2(a) of rule XX also
states: ``A record vote by electronic device shall not be held
open for the sole purpose of reversing the outcome of such
vote.''
In House Practice: A Guide to the Rules, Precedents, and
Procedures of the House, a principal parliamentary reference of
the House of Representatives, the parliamentarians have
summarized House precedents to state:
* * * The Chair has the discretion to close the vote and to
announce the result at any time after 15 minutes have elapsed
or to allow additional time for Members to record their votes
before announcing the result * * *. Thus, no point of order
lies against the decision of the Chair in his discretion to
close a vote taken by electronic device after 15 minutes have
elapsed * * *.
Elsewhere in House Practice, the parliamentarians have
summarized other House precedents to state: ``A Member who has
voted may change his vote any time before the final
announcement of the result.''
In addition, it has long been the practice of Speakers to
insert in the Congressional Record in the first few days of a
new Congress a statement of policies on aspects of the
legislative process. Continuing thiscustom in the 110th
Congress, Speaker Pelosi announced policies that were published in the
January 5, 2007, Congressional Record. Policy No. 6 deals with the
conduct of votes by electronic device, and continued in effect, with
modifications, a policy first announced by Speaker Gingrich on January
4, 1995. This policy states, in part:
* * * the Chair enlists the assistance of all Members in
avoiding the unnecessary loss of time in conducting the
business of the House. The Chair encourages all Members to
depart for the Chamber promptly upon the appropriate bell and
light signal. As in recent Congresses, the cloakrooms should
not forward to the Chair requests to hold a vote by electronic
device, but should simply apprise inquiring Members of the time
remaining on the voting clock. Members should not rely on
signals relayed from outside the Chamber to assume that votes
will be held open until they arrive in the Chamber. Members
will be given a reasonable amount of time in which to
accurately record their votes. No occupant of the Chair would
prevent a Member who is in the Well before the announcement of
the result from casting his or her vote.
A part of this area of investigation pertains to
understanding the authority of the presiding officer under the
rules and precedents of the House related to voting, as well as
any informal practices exercised under that authority. Another
part of this area of investigation relates to how Members learn
whether time remains to record or change their votes, how these
votes are cast and recorded, and how these votes are recorded
in the electronic voting system.
This information is important to understanding the events
surrounding the voting on the Motion to Recommit and how the
House has balanced its accommodation of Members wishing to vote
or change their vote with bringing a vote to a close. Such
information is important for making such recommendations to the
House as may be necessary to protect Members' voting rights.
Sequence of Events. What is learned from the three areas of
investigation described above will enable the Select Committee
to then fulfill the two purposes for which it was created:
based on an investigation of circumstances surrounding the vote
on the Motion to Recommit, report on actions by Members,
officers, or employees of the House engaged in the
disenfranchisement of Members in voting on the question, and
recommend changes to House rules and procedures necessary to
protect Members' voting rights.
The Select Committee will investigate the sequence of
events surrounding the vote on the Motion to Recommit to
establish a time line of events and to analyze these events
within the context of the first three areas of investigation.
The sequence of events includes the actions of Members in
voting; the actions of persons on the Speaker's Dais and of
persons not on the Speaker's Dais related to the conduct and
duration of the vote; the operation of the electronic voting
system, including messages and reports from the chair during
and after the vote and the relationship of paper to electronic
records; and the duration of the vote. As an aid to the Select
Committee's investigation, H. Res. 611 directed officers of the
House to ``preserve all records, documents, recordings,
electronic submissions, or other material, regardless of form,
related to the voting irregularities of August 2, 2007''. The
Office of the Clerk has provided communications to the Select
Committee and testified regarding the information and material
it has so far recovered, collected, and stored.
Recommendations to the House
The Select Committee will bring together the information
learned from the first three areas of investigation in
comparison with the actions that occurred surrounding the vote
on the Motion to Recommit as the basis for any recommendations
to the House on potential changes to House rules, procedures,
or practices to protect Members' voting rights.
H. Res. 611 directs the Select Committee to `` * * *
[recommend] changes to the rules and procedures of the House of
Representatives necessary to protect the voting rights of
constitutionally elected Members chosen by the people of the
United States of America''. The investigation of the Select
Committee will enable the Select Committee to discuss and
determine what recommendations, if any, to make to the House in
its final report.
Committee Consideration
The Select Committee met in open session on September 27,
2007, and, on the motion of the Chair, adopted this report by a
voice vote, a quorum being present.
Appendix: House Rules Related to Voting
The Select Committee requested and received assistance from
the Congressional Research Service in identifying House rules
that pertain to voting in the House of Representatives and the
Committee of the Whole. The House rules initially identified as
relevant to the Select Committee's investigation include:
Clause 1 of rule III makes it a duty of a Member to vote:
Every Member shall be present within the Hall of the House
during its sittings, unless excused or necessarily prevented,
and shall vote on each question put, unless he has a direct
personal or pecuniary interest in the event of such question.
Clause 2 of rule III prohibits a Member from authorizing
another person to cast the Member's vote or to record the
Member's presence in the House or the Committee of the Whole,
and prohibits any person from casting a Member's vote or
recording a Member's presence in the House or in the Committee
of the Whole.
Clause 6 of rule I directs the Speaker to put a question in
a specified form:
* * * The Speaker shall put a question in this form:
``Those in favor (of the question), say ``Aye.''; and after the
affirmative voice is expressed, ``Those opposed, say `No.' ''
After a vote by voice under this clause, the Speaker may use
such voting procedures as may be invoked under rule XX.
Clause 1(a) of rule XX provides for a division vote on the
Speaker's initiative or by demand.
Clause 1(b) of rule XX pertains to a recorded vote,
normally to be taken by electronic device:
If a Member, Delegate, or Resident Commissioner requests a
recorded vote, and that request is supported by at least one-
fifth of a quorum, the vote shall be taken by electronic device
unless the Speaker invokes another procedure for recording
votes provided in this rule. A recorded vote taken in the House
under this paragraph shall be considered a vote by the yeas and
nays.
Clause 1(c) of rule XX states that, on a tie vote, a
question loses.
Clause 2(a) of rule XX describes certain conditions related
to a vote by electronic device, including the minimum time by
which a vote by electronic device may be conducted and a
restriction on the purpose for which a vote may be held open:
Unless the Speaker directs otherwise, the Clerk shall
conduct a record vote or quorum call by electronic device. In
such a case the Clerk shall enter on the Journal and publish in
the Congressional Record, in alphabetical order in each
category, the names of Members recorded as voting in the
affirmative, the names of Members recorded as voting in the
negative, and the names of Members answering present as if they
had been called in the manner provided in clause 3. A record
vote by electronic device shall not be held open for the sole
purpose of reversing the outcome of such vote. Except as
otherwise permitted under clause 8 or 9 of this rule or under
clause 6 of rule XVIII, the minimum time for a record vote or
quorum call by electronic device shall be 15 minutes.
Clause 2(b) of rule XX deals with the situation in which
the electronic voting system is inoperable, and allows the
Speaker or the chairman of the Committee of the Whole House on
the State of the Union to direct the Clerk to conduct a record
vote or quorum call pursuant to clause 3 (call of the roll) or
clause 4 (tellers).
Clause 6 of rule XX pertains to the situation where a
quorum is not present on a vote in the House and objection is
made that a quorum is not present. Subparagraph (a)(3)
provides: ``the yeas and nays on the pending question shall at
the same time be considered as ordered.'' Certain procedures
are also prescribed in this clause, and a motion to adjourn is
made in order after Members have had the opportunity to vote
but before the result has been announced.
Clause 8(a)(1)(A) of rule XX authorizes the Speaker, when a
recorded vote or the yeas and nays are ordered, to postpone
further proceedings ``to a designated place in the legislative
schedule within two additional legislative days'' for eight
questions specified in subparagraph (2). Paragraph (B)
authorizes the Speaker, when a recorded vote or the yeas and
nays are ordered, to postpone further proceedings on the
question of agreeing to the Speaker's approval of the Journal
``to a designated place in the legislative schedule on that
legislative day.''
Clause 8 of rule XX further regulates postponed votes.
Under clause 8(b), ``At the time designated by the Speaker for
further proceedings on questions postponed under paragraph (a),
the Speaker shall resume proceedings on each postponed vote.''
Under paragraph (c), the Speaker is permitted to reduce to five
minutes the minimum time for electronic voting on a vote on a
question postponed under clause 8 ``that follows another
electronic vote without intervening business, so long as the
minimum time for electronic voting on the first in a series of
questions is 15 minutes.'' Paragraph (d) states the condition
underwhich further proceedings on postponed questions become
the unfinished business of the House on the next legislative day.
Clause 9 of rule XX permits, with notice, a five-minute
vote on any question arising without intervening business after
an electronic vote on another question:
The Speaker may reduce to five minutes the minimum time for
electronic voting on any question arising without intervening
business after an electronic vote on another question if notice
of possible five-minute voting for a given series of votes was
issued before the preceding electronic vote.
Clause 10 of rule XX requires automatic yeas and nays in
certain circumstances:
The yeas and nays shall be considered as ordered when the
Speaker puts the question on passage of a bill or joint
resolution, or on adoption of a conference report, making
general appropriations, or increasing Federal income tax rates
(within the meaning of clause 5 of rule XXI), or on final
adoption of a concurrent resolution on the budget or conference
report thereon.
In addition to provisions in rule XX that relate to voting
in the Committee of the Whole, clause 6 of rule XVIII, pertains
to quorum and voting in the Committee of the Whole. Clause
6(b)(2) limits a point of order that a quorum is not present to
a specific circumstance:
After a quorum has once been established on a day, the
Chairman may entertain a point of order that a quorum is not
present only when the Committee of the Whole House on the state
of the Union is operating under the five-minute rule and the
Chairman has put the pending proposition to a vote.
Clause 6(b)(3) of rule XVIII then provides in relation to
subparagraph (2):
Upon sustaining a point of order that a quorum is not
present, the Chairman may announce that, following a regular
quorum call under paragraph (a), the minimum time for
electronic voting on the pending question shall be five
minutes.
Clause 6 of rule XVIII states that the chairman of the
Committee of the Whole shall order a recorded vote on a request
supported by at least 25 Members.
Clause 6(f) of rule XVIII allows the chairman of the
Committee of the Whole to reduce the minimum time for voting to
five minutes:
In the Committee of the Whole House on the state of the
Union, the Chairman may reduce to five minutes the minimum time
for electronic voting without any intervening business or
debate on any or all pending amendments after a record vote has
been taken on the first pending amendment.
The chairman of the Committee of the Whole may also
postpone a request for a recorded vote on an amendment under
Clause 6(g) of rule XVIII:
The Chairman may postpone a request for a recorded vote on
any amendment. The Chairman may resume proceedings on a
postponed request at any time. The Chairman may reduce to five
minutes the minimum time for electronic voting on any postponed
question that follows another electronic vote without
intervening business, provided that the minimum time for
electronic voting on the first in any series of question shall
be 15 minutes.
Clause 3 of rule III grants to each Delegate and the
Resident Commissioner ``the same powers and privileges as
Members of the House'' in the Committee of the Whole. Where the
votes cast by the Delegates and Resident Commissioner are
``decisive'' in the recorded vote on a question in the
Committee of the Whole, clause 6(h) of rule XVIII requires a
re-vote:
Whenever a recorded vote on any question has been decided
by a margin within which the votes cast by the Delegates and
the Resident Commission have been decisive, the Committee of
the Whole shall rise and the Speaker shall put such question de
novo without intervening motion. Upon the announcement of the
vote on that question, the Committee of the Whole shall resume
its sitting without intervening motion.
The Select Committee has not yet determined the relevance
or importance, if any, of the above rules or any other House
rules to the inquiry and duties of the Select Committee.
However, the Select Committee believes this initial list may
serve useful in moving forward with our assignment.