[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

======================================================================
 
               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.

                                  
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