[House Report 110-528]
[From the U.S. Government Publishing Office]





110th Congress                                      Rept. 110-528
 2d Session             HOUSE OF REPRESENTATIVES    Part 2
_______________________________________________________________________

 
       DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF 
  REPRESENTATIVE FROM THE THIRTEENTH CONGRESSIONAL DISTRICT OF FLORIDA

                               ----------                              

                              R E P O R T

                                 of the

                   COMMITTEE ON HOUSE ADMINISTRATION

                              to accompany

                              H. Res. 989

                              Part 2 of 3




 February 14, 2008.--Referred to the House Calendar and ordered to be 
                                printed













       DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF 
 REPRESENTATIVE FROM THE THIRTEENTH CONGRESSIONAL DISTRICT OF FLORIDA--
                              PART 2 OF 3





































110th Congress                                            Rept. 110-528
 2d Session             HOUSE OF REPRESENTATIVES                 Part 2
_______________________________________________________________________



       DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF 
  REPRESENTATIVE FROM THE THIRTEENTH CONGRESSIONAL DISTRICT OF FLORIDA

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOUSE ADMINISTRATION

                              to accompany

                              H. Res. 989

                              Part 2 of 3




 February 14, 2008.--Referred to the House Calendar and ordered to be 
                                printed











                   COMMITTEE ON HOUSE ADMINISTRATION

                ROBERT A. BRADY, Pennsylvania, Chairman
ZOE LOFGREN, California              VERNON J. EHLERS, Michigan
  Vice-Chairwoman                      Ranking Minority Member
MICHAEL E. CAPUANO, Massachusetts    DANIEL E. LUNGREN, California
CHARLES A. GONZALEZ, Texas           KEVIN McCARTHY, California
SUSAN A. DAVIS, California
ARTUR DAVIS, Alabama
                 S. Elizabeth Birnbaum, Staff Director
                William Plaster, Minority Staff Director
                              ----------                              

    Task Force for the Contested Election in the 13th Congressional 
                          District of Florida

                  CHARLES A. GONZALEZ, Texas, Chairman
ZOE LOFGREN, California              KEVIN McCARTHY, California





















                            C O N T E N T S

                              ----------                              
                                                                   Page
1. Majority Report...............................................     1
2. Appendices:
    A. Chronology of Events......................................    13
    B. Investigation by Task Force...............................    19
    C. Investigation by GAO......................................   201
    D. Investigation by State and Local Authorities..............   297
    E. State Court Proceedings...................................   443
    F. House of Representatives Party Filings....................  1623
    G. The Federal Election Contested Act of 1969................  4423




















110th Congress                                            Rept. 110-528
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 2

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


       DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF 
  REPRESENTATIVE FROM THE THIRTEENTH CONGRESSIONAL DISTRICT OF FLORIDA

                                _______
                                

 February 14, 2008.--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. 989]

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

                            COMMITTEE ACTION

    On February 12, 2008, by unanimous 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.

                  TASK FORCE ON THE CONTESTED ELECTION

    Pursuant to Rule 16(b) of the Rules of Procedure of the 
Committee on House Administration, the Honorable Juanita 
Millender-McDonald, Chairwoman of the Committee, established a 
Task Force on March 22, 2007 to oversee matters related to the 
election of a Representative from the 13th Congressional 
District of Florida to the House of Representatives and to 
recommend to the Committee the final disposition of the 
election contest filed by Christine Jennings (``Contestant'') 
against Vern Buchanan (``Contestee'') pursuant to the Federal 
Contested Elections Act (FCEA), 2 U.S.C. Sec. Sec. 381-396.

                           STATEMENT OF FACTS

Introduction

    This report relates to the election contest concerning the 
2006 general election for the House of Representatives seat for 
the 13th Congressional District of Florida. This election 
contest arises under the United States Constitution, Article I, 
Sec. 5, and is brought pursuant to the FCEA, 2 U.S.C. 
Sec. Sec. 381-396. The House of Representatives has the express 
and final authority to judge the elections and returns of its 
own Members.\1\
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    \1\ U.S. Constitution Article I, Section V, Clause 1.
---------------------------------------------------------------------------

2006 General Election for the 13th Congressional District of Florida

    On November 7, 2006, Republican Vern Buchanan and Democrat 
Christine Jennings competed in the general election to 
represent the open seat for the 13th Congressional District of 
Florida (``District-13'').\2\ Of the 238,249 votes cast, 
Contestant received 118,737 votes and Contestee received 
119,105, a 368-vote margin of victory.\3\ Pursuant to Florida 
law, the Florida Elections Canvassing Commission ordered a 
recount to verify the small margin of victory.\4\ Following the 
recount, on November 20, 2006, the Elections Canvassing 
Commission certified 119,309 votes for Contestee and 118,940 
votes for Contestant, with Contestee prevailing by 369 
votes.\5\
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    \2\ The District-13 seat was formerly held by Representative 
Katherine Harris, who decided to run for the United States Senate 
rather than for re-election to the House.
    \3\ Wallace, Jeremy. ``Democrats Seize House; Crist In; Buchanan 
Leads; Slim 368-vote margin will trigger a recount for the 13th 
District.'' Sarasota Herald-Tribune 8 November 2006.
    \4\ Florida Election Code 102.141(6).
    \5\ Official Certificate of the State Elections Canvassing 
Commission of the General Election Held on the Seventh Day of November 
2006. (See Appendix F)
---------------------------------------------------------------------------
    The election results, however, were controversial, as 
Sarasota County reported an almost 15% undervote, an unusually 
high number of undervotes compared to other counties in the 
District. Of the 123,901 ballots cast in Sarasota County, 
18,000 did not show a vote cast for the District-13 race.

Proceedings Involving Florida Secretary of State's Office

    On November 9, 2006, the Florida Secretary of State 
directed the Florida Division of Elections, Bureau of Voting 
Systems Certification to conduct an audit of Sarasota County's 
voting system and election procedures to assure that the voting 
system used in Sarasota County was not responsible for the 
unusually high number in the Congressional race in the county. 
On November 28, 2006, Florida's audit team commenced two 
parallel tests on the Election Systems & Software (ES&S) 
iVotronic touch screen voting systems. These parallel tests 
were designed to simulate mini-elections on five voting systems 
to test Election Day vote totals cast on the machines and 
assess whether the undervote count observed during the 
District-13 race could be replicated. On December 15, 2006, 
pursuant to the Florida Secretary of State's request, 
FloridaState University's Security Analysis in Information Technology 
(SAIT) Laboratory conducted a software review and security analysis of 
the ES&S iVotronic firmware. The final audit report released by the 
Florida Department of State on February 23, 2007 found no evidence to 
suggest or conclude that the official certified election results did 
not reflect the actual votes cast.\6\
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    \6\ Florida Department of State, Division of Elections Audit Report 
of the Elections Systems and Software, Inc.'s iVotronic Voting System 
in the 2006 General Election for Sarasota County. Florida: 2007. (See 
Appendix D)
---------------------------------------------------------------------------

Proceedings Involving Florida's Courts

    On November 20, 2006, Contestant filed a contested election 
suit in Florida's Circuit Court for the Second Judicial 
Circuit.\7\ Contestant argued that Florida's certified vote 
totals excluded thousands of legal votes that were cast in 
Sarasota County due to malfunctioning electronic voting 
machines.\8\ Contestant subsequently requested access to the 
ES&S hardware and software in possession of the state and 
county to test whether the iVotronic voting system in fact 
malfunctioned and caused the undervotes.\9\ The state, county, 
and ES&S defendants jointly objected to Contestant's production 
request, arguing that these materials were trade secrets 
belonging to ES&S.\10\ In addition to the defendants' 
objections, ES&S requested an evidentiary hearing to determine 
the necessity of Contestant's request for the hardware, 
software, and source code. Judge William Gary granted ES&S's 
request and held an evidentiary hearing on December 19 and 20, 
2006. On December 29, 2006, Judge Gary issued an order denying 
Jennings access to the ES&S hardware and software.
---------------------------------------------------------------------------
    \7\ Contestant filed the contested election suit in the Florida's 
Circuit Court of the Second Judicial Circuit under Florida Election 
Code 102.168.
    \8\ Jennings v. Election Canvassing Commission of the State of 
Florida, Plaintiff's Compliant to Contest, 20 November 2006. (See 
Appendix E)
    \9\ Jennings v. Election Canvassing Commission of the State of 
Florida, Plaintiff's Motion to Compel Expedited Discovery, 20 November 
2006. (See Appendix E)
    \10\ Jennings v. Election Canvassing Commission of the State of 
Florida, State Defendants' Response to Plaintiff Jennings' Request for 
Production of Documents and for Inspection of Tangible Things, 5 
December 2006. (See Appendix E)
---------------------------------------------------------------------------
    On January 3, 2007, Contestant filed an emergency motion in 
Florida's First District Court of Appeal to expedite 
proceedings and appeal of the trial court's ruling. On January 
24, 2007, the appellate court granted Contestant's motion to 
expedite. On June 18, 2007, the First District of Appeal denied 
the Contestant's motion to compel discovery and access to 
proprietary information, including voting machine source code 
technology. No further action was taken by the courts or the 
parties over the following five months, and the Contestant 
withdrew her challenge in the Florida courts on November 26, 
2007.

Proceedings Before the Committee on House Administration

    On December 20, 2006, in addition to her state court suit, 
Contestant filed a Notice of Contest with the House of 
Representatives under the FCEA \11\ and pursuant to the 
authority vested in the House by the U.S. Constitution.\12\ On 
January 4, 2007, the late Committee on House Administration 
Chairwoman Millender-McDonald wrote to the appellate court to 
express concern whether the State's proceedings regarding 
access to evidence that could resolve the contested election 
matter at the State level would facilitate resolution of the 
election contest proceedings pending before the House.\13\ A 
complete record, she opined, would facilitate the House's 
consideration of the pending contest.
---------------------------------------------------------------------------
    \11\ 2 U.S.C. Sec. Sec. 381-369.
    \12\ U.S. Constitution, Article 1, Section V.
    \13\ Millender-McDonald, Chairwoman Juanita, Letter to the Mr. Jon 
Wheeler, 2 January 2007 (See Appendix E) On January 10, 2007, the 
appellate court notified the Chairwoman that her correspondence would 
not be docketed and considered by the panel of judges deciding 
Contestant's case.
---------------------------------------------------------------------------
    On January 4, 2007, Contestee was sworn in as a Member of 
the One Hundred and Tenth Congress. On January 19, 2007, 
Contestee filed a Motion to Dismiss in which he argued that the 
Contestant's case was based upon nothing more than conjecture 
and speculation. In support of his characterization of the 
contest, Contestee pointed out that the State of Florida 
conducted an audit of the voting systems in Sarasota County and 
found that they operated properly.\14\
---------------------------------------------------------------------------
    \14\ Jennings v. Buchanan. Contestee's Motion to Dismiss Election 
Contest, 19 January 2007. (See Appendix F)
---------------------------------------------------------------------------
    On January 22, 2007, Chairwoman Millender-McDonald 
requested that Sarasota County Supervisor of Elections Kathy 
Dent preserve all materials utilized in conjunction with the 
Federal general election held on November 7, 2006.\15\ On 
January 26, 2007, Sarasota County replied that it needed to 
deploy approximately 800 of the 1,600 voting machines used in 
the November 2006 general election for its March 2007 municipal 
election.\16\ On February 7, 2007, Chairwoman Millender-
McDonald, relying on expert advice that testing all the 
machines would be unnecessary in determining whether the 
machines were responsible for the undervote, and the County 
reached a compromise wherein the county could deploy 800 voting 
machines for use in the March election.\17\
---------------------------------------------------------------------------
    \15\ For document see Appendix B.
    \16\ For document see Appendix B.
    \17\ For document see Appendix B.
---------------------------------------------------------------------------
    On March 23, 2007, Chairwoman Millender-McDonald 
established a three member Task Force to oversee matters 
relating to the District-13 election contest. For the Majority, 
Chairwoman Millender-McDonald appointed Representative Charles 
Gonzalez as Chair and Representative Zoe Lofgren as a member of 
the Task Force. On April 16, 2007, Ranking Member Vernon Ehlers 
recommended Representative Kevin McCarthy to serve as the 
Minority member of the Task Force. Shortly after Chairwoman 
Millender-McDonald's passing on April 22, 2007, the then-acting 
Chairman, Representative Robert Brady, appointed Representative 
Kevin McCarthy to serve as the Minority Task Force member on 
April 25, 2007.
    The Task Force first met on May 2, 2007, when it 
unanimously voted to retain the Government Accountability 
Office (GAO) to investigate whether the voting machines used in 
Sarasota County contributed to the unusually high number of 
undervotes. The GAO was also asked to evaluate and recommend 
whether additional testing was needed to establish whether the 
voting machines contributed to the undervote.\18\
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    \18\ Government Accountability Office, Engagement Plan for Review 
of Voting Equipment Used in Florida's 13 Congressional District during 
the 2006 General Election. District of Colombia: 14 June 2007. (See 
Appendix C)
---------------------------------------------------------------------------
    On June 14, 2007, the Task Force unanimously approved the 
GAO's Engagement Plan, which detailed its scope of work and 
approach to determine to what extent the voting machines used 
in Sarasota County could have contributed to the large 
undervote and ascertain whether additional testing was needed 
to determine whether machine malfunction contributed to the 
undervote.\19\ The Task Force also agreed that Chairman 
Gonzalez would transmit the GAO Engagement Plan to both parties 
to the contest and provide them seven days to comment on the 
plan. The parties were asked to address central questions 
relating to the adequacy or inadequacy of prior testing of the 
electronic voting machines, whether additional tests were 
needed, and provide suggested testing protocols in the event 
that additional testing was required.\20\ Further, the Task 
Force agreed that Chairman Gonzalez should notify all 
individuals, offices, and entities identified in the GAO plan 
that the Task Force sought their full, prompt, and voluntary 
cooperation with the GAO.\21\
---------------------------------------------------------------------------
    \19\ Meeting to Discuss the Status of the Investigation into the 
FL-13 Congressional District Election: Meeting Before the Committee on 
House Administration 110th Cong., 1st Sess. Page 21 (June 14, 2007).
    \20\ Gonzalez, Charles, Letter to Mr. Sam Hirsh & Mr. Hayden 
Dempsey, 15 June 2007. (See Appendix B)
    \21\ Gonzalez, Charles, Letter to Ms. Dent, Mr. Browning, Ms. Tuck, 
Mr. Tesi, & Mr. Burmester, 15 June 2007. (See Appendix B)
---------------------------------------------------------------------------
    On June 27, 2007, before the GAO completed its Engagement 
Plan, Representative Kevin McCarthy wrote to Chairman Gonzalez 
regarding media reports, one of which urged Contestant to 
consider conceding the election.\22\ Representative McCarthy 
requested that the Task Force prepare a contingency plan to 
resolve the election contest in the event that Contestant opted 
to concede the race to Contestee. On June 28, 2007, Chairman 
Gonzalez informed Representative McCarthy that the Task Force 
would not entertain a contingency plan to end the contested 
election proceedings based bare speculation regarding the 
Contestant's future intentions.\23\
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    \22\ McCarthy, Kevin, Letter to Rep. Charles Gonzalez, 27 June 
2007. (See Appendix B)
    \23\ Gonzalez, Charles, Letter to Rep. Kevin McCarthy, 28 June 
2007. (See Appendix B)
---------------------------------------------------------------------------
    On August 3, 2007, at a public meeting of the Task Force, 
the GAO provided a status report on the progress of its 
Engagement Plan. The GAO testified that it had been analyzing 
ballot results and reviewing existing testing efforts such as 
the Florida election audit. The GAO also offered its 
preliminary observations of the Florida parallel test, source 
code review, and audit of the Sarasota County voting 
systems.\24\
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    \24\ Meeting to Discuss the Status of the Investigation into the 
FL-13 Congressional District Election: Meeting Before the Committee on 
House Administration 110th Cong., 1st Sess. Page 3 (August 3, 2007) 
(Testimony of Dr. Nabajyoti Barkakati).
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    On October 2, 2007, the GAO stated that further testing 
could provide increased assurance that the voting systems did 
not cause the undervotes in Florida's Thirteenth Congressional 
District.\25\ During its analysis, GAO found that, while prior 
testing and reviews by the State of Florida and Sarasota County 
provided some degree of assurance that certain components of 
the voting systems in Sarasota County functioned correctly, 
such testing and reviews were not sufficient to provide 
adequate assurance that the voting systems did not contribute 
to the undervotes. Following GAO's testimony, the Task Force 
unanimously authorized GAO to conduct its recommended testing 
on the Sarasota County voting systems.
---------------------------------------------------------------------------
    \25\ Meeting to Discuss the Status of the Investigation into the 
FL-13 Congressional District Election: Meeting Before the Committee on 
House Administration, 110th Cong., 1st Sess. Page 6 (October 2, 2007) 
(Testimony of Dr. Nabajyoti Barkakati).
---------------------------------------------------------------------------
    On February 8, 2008, GAO provided the Task Force with the 
results from the additional testing it conducted on the 
firmware, ballot, and calibration of the iVotronic touch screen 
voting machines.\26\ GAO concluded that the voting systems used 
in Sarasota County did not contribute to the undervote and 
further testing was not necessary. GAO also acknowledged that 
ballot design or voter confusion or apathy in the race could 
have contributed to the 18,000 undervotes. Following the GAO 
testimony the Task Force unanimously moved to report to the 
Committee on House Administration that the election contest in 
District-13 be dismissed.
---------------------------------------------------------------------------
    \26\ GAO Briefing to the Task Force: Report on Findings in the 
Investigation into the FL-13 Congressional District Contested Election: 
Meeting Before the Committee on House Administration, 110th Cong., 2nd 
Sess. (February 8, 2008).
---------------------------------------------------------------------------
    On February 12, 2008, the Committee on House Administration 
met to consider the recommendation of the Task Force for the 
District-13 election contest. During this meeting, the 
Committee unanimously voted to report favorably to the House an 
original resolution to dismiss the election contest.\27\
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    \27\ Meeting Before the Committee on House Administration Meeting, 
110th Cong., 2nd Sess. (February 12, 2008).
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                            BASIS OF CONTEST

    In support of her Notice of Contest, the contestant alleged 
the following grounds for contesting the election: first, she 
dismissed the reliability of Florida's recount audit, arguing 
that merely ``recounting'' electronic ballots (unlike paper 
ballots) is inevitably a meaningless exercise because the 
manual ``recount'' consists simply of printing out the ballot-
image reports from the alleged malfunctioning iVotronic systems 
and counting by hand the ballot images that recorded no choice 
for the congressional race in question.\28\ As anticipated, 
neither the machine nor the manual recount altered or explained 
the number of congressional undervotes recorded on the 
iVotronic touch screen voting system in Sarasota County.
---------------------------------------------------------------------------
    \28\ Jennings v. Buchanan Notice of Contest Regarding the Election 
For Representative In the One Hundred Tenth Congress From Florida's 
Thirteenth Congressional District, 20 December 2006. (See Appendix F)
---------------------------------------------------------------------------
    Contestant also argued that the undervote total for the 
congressional race in Sarasota County was abnormal in several 
respects. The undervote rate on Election Day was 13.9% of the 
ballots cast on electronic voting machines, and the undervote 
rate during the early-voting process was 17.6% of the ballots 
cast on electronic machines. By contrast, of the 22,613 votes 
cast in this race by paper absentee ballot in Sarasota County, 
there were just 566 undervotes recorded--an undervote rate of 
only 2.5%. In addition, the percentage of undervotes for the 
District-13 race in Sarasota County was disproportionately 
higher than other counties within District-13. The undervote 
rate for the race was 2.5% in Charlotte County, 2.1% in DeSoto 
County, 5.8% in Hardee County, and 2.4% in Manatee County. 
Finally, the percentage of undervotes recorded on electronic 
voting machines in Sarasota County in 2006 for the 
congressional race was almost seven times the rate of 
undervotes for District-13 in the last midterm election (2002), 
which was 2.2%. Contestant argued that this statistical 
evidence alone indicated that the large number of undervotes in 
Sarasota must be attributable to a malfunction of the iVotronic 
touch screen voting system.
    In addition to this statistical evidence, Contestant also 
submitted as evidence in support of her Notice of Contest 
affidavits memorializing the eyewitness accounts of hundreds of 
Sarasota County voters attesting to their difficulties in 
attempting to cast a vote for Contestant during early voting 
and on Election Day on the iVotronic touch screen voting system 
in Sarasota County.\29\ She also cited numerous contemporaneous 
official ``Incident Report Forms'' filed with the Sarasota 
County Supervisor of Elections documenting widespread 
occurrences of voters having difficulty getting the iVotronic 
machines to record votes in the District-13 race.
---------------------------------------------------------------------------
    \29\ Jennings v. Buchanan, Documentation of Voting Machine 
Malfunction Appendix to Contestant Jennings' Memorandum Responding to 
the Honorable Charles A. Gonzalez's April 3, 2007 Letter Regarding The 
Investigation of the Election For Representative In the One Hundred 
Tenth Congress From Florida's Thirteenth Congressional District Volume 
I & II, 13 April 2007. (See Appendix F)
---------------------------------------------------------------------------
    Finally, Contestant cited a statistical analysis conducted 
by Professor Charles Stewart III, the chair of the Political 
Science Department at the Massachusetts Institute of Technology 
(MIT), to argue that failure of the iVotronic touch screen 
voting system adversely affected the outcome of the District-13 
race. Based on his study of patterns in the undervote rates for 
other statewide or countywide races in Sarasota County, 
Professor Stewart estimated that the number of ``excess'' 
undervotes caused by the use of the iVotronic machines in 
Sarasota County was approximately 14,000.\30\ Using the ballot-
image logs for every individual ballot cast electronically in 
the Sarasota County November 2006 general election--and 
studying voters' preferences not only for the congressional 
race but also for the statewide races for U.S. Senator, 
Governor, Attorney General, Chief Financial Officer, and 
Agriculture Commissioner--Professor Stewart estimated that the 
voters whose congressional ballots were recorded as undervotes 
likely supported Contestant over Contestee by a margin of 
approximately 63% to 37%. Accordingly, Professor Stewart 
postulated that if the 14,000 congressional undervotes had 
actually been properly recorded and tallied, Contestant would 
have won the election by more than 3,000 votes--well in excess 
of the race's 369 vote margin of victory. Professor Stewart 
also postulated that even if the machine malfunction caused 
only 1,500 ``excess'' undervotes--or less than 10% of the total 
congressional undervotes reported--proper tabulation of those 
1,500 congressional ballots could have reversed the outcome of 
the election.
---------------------------------------------------------------------------
    \30\ Jennings v. Buchanan, Notice of Contest Regarding the Election 
For Representative In the One Hundred Tenth Congress From Florida's 
Thirteenth Congressional District, 20 December 2006. (See Appendix F)
---------------------------------------------------------------------------

                       STANDING, TIMING, & NOTICE

    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 
contestant's seat.\31\ Jennings was the Democratic nominee and 
her name appeared as a candidate for the District-13 of the 
official ballot for the November 7, 2006 election, thereby 
satisfying the standing requirement. The Notice of Contest was 
served upon Contestee and filed within the prescribed time 
periods of the FCEA.
---------------------------------------------------------------------------
    \31\ 2 U.S.C. Sec. 382(a).
---------------------------------------------------------------------------

                         RESPONSE BY CONTESTEE

    On January 19, 2007, Contestee filed a Motion to Dismiss 
with the Clerk of the House, in which Contestee argued that the 
Contestant' contest be dismissed because Contestant: (1) Failed 
to provide credible evidence sufficient to alter the result of 
the election; and (2) failed to credibly make a claim of right 
to Contestee's congressional seat.
    In support of his Motion to Dismiss, Contestee argued that 
his certification by the State of Florida as the winner of the 
District-13 election constitutes prima facie evidence that the 
election was conducted correctly and must be afforded a strong 
presumption of legality and correctness. He argued that the 
iVotronic touch-screen voting system challenged by Contestant 
and her experts was tested as required by Florida law prior to 
the early voting period and Election Day and was found by the 
State to be working properly. He noted that the State of 
Florida conducted post-election parallel testing, which 
concluded that the iVotronic touch screen machines demonstrated 
100% accuracy in recording vote selections and ``there is no 
evidence to support the position that the iVotronic touch 
screens caused votes to be lost.'' \32\ Contestee also noted 
that during post-election litigation a Florida circuit court 
conducted a thorough review of Contestant' evidence and 
experts' opinions and concluded that the ``testimony of 
[Jennings'] experts was nothing more than conjecture and not 
supported by credible evidence.'' \33\
---------------------------------------------------------------------------
    \32\ Jennings v. Buchanan. Contestee's Motion to Dismiss Election 
Contest, 19 January 2007. (See Appendix F)
    \33\ Jennings v. Buchanan. Contestee's Motion to Dismiss Election 
Contest, 19 January 2007. (See Appendix F)
---------------------------------------------------------------------------
    Contestee also argued that Contestant, in her Notice of 
Contest, failed to provide necessary evidence that: (1) The 
intent of any single voter was frustrated; (2) any individual 
voter was unable to cast a vote for her; or (3) a single vote 
was cast for her but not counted. Contestee argued that the 
lack of such evidence demonstrated that Contestant could not 
meet the high burden required to proceed with the Contest or 
invalidate a certified election.

                STANDARD FOR GRANTING MOTION TO DISMISS

    The House of Representatives has the Constitutionally 
vested power to judge its own elections.\34\ 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.\35\ The contestant must support the claim with specific 
credible allegations of irregularity or fraud that, if proven 
true, would entitle the contestant to the office.\36\ Unless a 
contestant credibly claims in his or her Notice of Contest a 
right to the office, the House of Representatives will dismiss 
the contest.\37\
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    \34\ U.S. Constitution Article I, Section V.
    \35\ 2 U.S.C. Sec. 382.
    \36\ Pierce v. Pursell, H. Rep. 95-245 (1977).
    \37\ Anderson v. Rose, H. Rep. 104-852 (1996).
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                                ANALYSIS

    At its first meeting on May 2, 2007, the Task Force had 
before it the pleadings filed by Contestant, her Notice of 
Contest Regarding the Election for Representative in the One 
Hundred Tenth Congress from Florida's Thirteenth Congressional 
District (``District''), and Contestee's Motion to Dismiss 
Election Contest. By voice vote, the Task Force initiated an 
investigation of the District-13 election.\38\
---------------------------------------------------------------------------
    \38\ Meeting to Discuss Matters Pertaining to the Contested 
Election in the 13th Congressional District of Florida: Meeting Before 
the Committee on House Administration 110th Cong., 1st Sess. Page 12 
(May 2, 2007).
---------------------------------------------------------------------------
    Under the Committee on House Administration's investigative 
authority to develop evidence needed to consider a contested 
election,\39\ Task Force Chairman Charles Gonzalez secured the 
assistance of the GAO in connection with the technical analysis 
of the voting equipment used in Sarasota County. Specifically, 
the Task Force asked the GAO to review the existing testing and 
evaluation conducted by Sarasota County, the State of Florida, 
and the manufacturers of the voting equipment. The review was 
to include opinions and recommendations of Contestant and 
Contestee as to the adequacy or inadequacy of the testing 
performed to date.\40\ Additionally, the GAO was to review the 
pleadings and supporting documents filed in the contest, and if 
needed, design, propose, and implement testing protocols to 
determine the reliability of the voting equipment used.
---------------------------------------------------------------------------
    \39\ Rules of the Committee on House Administration One Hundred 
Tenth Congress, Rule 16.
    \40\ Burhans, Glenn, Letter to Rep. Charles Gonzalez, 22 June 2007. 
(See Appendix F) Hirsch, Sam, Letter to Rep. Charles Gonzales, 22 June 
2007. (See Appendix F)
---------------------------------------------------------------------------
    On June 14, 2007, the GAO presented its plan to review the 
voting equipment used in the District during the 2006 general 
election.\41\ The high-level objective of the plan, as 
unanimously approved by the Task Force, was to determine the 
extent to which the iVotronic voting machines could have 
contributed to the large undervote in Sarasota County, and to 
ascertain whether additional testing might be needed. Though 
the District includes five counties, because Contestant's 
claims and the Florida state audit focused solely on Sarasota 
County, the Task Force limited GAO's scope of review to 
Sarasota County.
---------------------------------------------------------------------------
    \41\ Meeting to Discuss the Status of the Investigation into the 
FL-13 Congressional District Election: Meeting Before the Committee on 
House Administration 110th Cong., 1st Sess. Page 17 (June 14, 2007)
---------------------------------------------------------------------------
    During the period June 14, 2007-October 2, 2007, the GAO 
met with officials from the Office of the Sarasota County 
Supervisor of Elections, the Florida Department of State and 
Division of Elections, and ES&S. From its analysis of the prior 
tests and reviews conducted by the State of Florida and 
Sarasota County, the GAO found that certain components of the 
iVotronic touch screen voting systems in Sarasota functioned 
correctly and that reasonable assurance of some voting system 
objectives had been achieved, but these tests and reviews were 
not enough to provide reasonable assurance that the iVotronic 
voting systems did not contribute to the undervote.
    The GAO indicated that the prior tests and reviews of 
Sarasota County's iVotronic voting systems had some 
shortcomings. First, the GAO indicated that ``reasonable 
assurance'' that all the iVotronic voting systems used in the 
2006 general election used software certified by the Florida 
Division of Elections was lacking. Second, the ability of 
voters to make selections in different ways on the iVotronic 
voting systems and ensure their votes were properly recorded 
had not been fully tested. Finally, the GAO indicated that 
prior testing did not provide a clear understanding of whether 
a miscalibrated machine would have contributed to the 
undervote. On the basis of GAO's analysis of all prior tests 
and audit activities conducted on the iVotronic touch screen 
voting systems in Sarasota County, the Task Force unanimously 
approved on October 2, 2007, that the GAO should conduct: (1) 
further firmware testing to verify that the firmware in the 
iVotronic voting systems used in the Sarasota County machines 
matched the certified version; (2) ballot testing of the 
iVotronic voting systems to confirm correct operation; and (3) 
calibration testing of the iVotronic to understand the effect 
on the undervote.
    During the period November 27-December 4, 2007, the GAO 
conducted additional testing on the iVotronic touch screen 
voting system used in Sarasota County. The GAO delivered its 
report on the process and results of the additional testing to 
the Task Force at a public hearing on February 8, 2008.
    To conduct its tests, the GAO developed test protocols and 
detailed test procedures, fully outlined in its report and 
appendices. The GAO met with officials from the Sarasota County 
Supervisor of Elections, the Florida Department of State and 
Division of Elections, and ES&S to obtain necessary details 
about the voting systems and prior tests to document the 
testing procedures. The GAO also reviewed voting system 
documentation to develop its testing approach and procedures. 
To ensure that the certified firmware held in escrow by the 
Florida Division of Elections corresponded to the source code 
that was reviewed by a team from Florida State University and 
the GAO, on November 19, 2007, the GAO visited the ES&S 
development facility in Rockford, Illinois, and witnessed the 
rebuild of the firmware from the escrowed source code.
    In conducting its firmware verification test, GAO extracted 
the firmware from a random probability sample of 115 iVotronic 
touch screen voting systems out of the 1,499 used in Sarasota 
County's 2006 general election and found that each machine's 
firmware matched the certified version of firmware held in 
escrow by the Florida Division of Elections. Based on this 
statistical approach, the GAO was able to determine with a ``99 
percent confidence level'' that at least 1,439 of the 1,499 
machines used the same firmware that was certified by the 
Florida Division of Elections. Consequently, the GAO reported 
to the Task Force that it had more confidence in the results of 
previous source code reviews conducted by itself and Florida 
State University, which had indicated that the iVotronic touch 
screen voting system did not cause the recorded undervotes.
    For the ballot test, the GAO cast predefined test ballots 
on 10 iVotronic machines and confirmed that each ballot was 
displayed and recorded accurately. The test ballots represented 
112 common ways a voter may have interacted with the iVotronic 
system to select a candidate in the District-13 race and cast a 
ballot. These tests were performed on nine machines configured 
as election-day machines and then repeated on one machine 
configured as an early voting machine.
    The GAO finally conducted the calibration test by 
miscalibrating two iVotronic touch-screen voting machines and 
casting ballots on them to validate that the machines recorded 
the information that was displayed on the touch screens. The 
GAO reported to the Task Force that its tests, involving a 
total of 10 different miscalibration patterns and capturing 39 
ballots, indicated that the machines correctly displayed the 
selection in the District-13 race on the review screen and 
correctly recorded the ballot. The GAO further reported that, 
while the miscalibrated machines were more difficult to use, 
the selections shown on the screen were the same selection 
captured by the machine when the ballot was cast.
    Based on the results of these tests, the GAO advised the 
Task Force that it has obtained increased assurance that the 
iVotronic touch screen voting system used in Sarasota's 2006 
general election did not contribute to the large undervote in 
the District-13 contest. The GAO explained that although 
absolute assurance is not possible to achieve, since it is 
unable to completely recreate the conditions of the election 
during which the undervote occurred, it believes that these 
test results, combined with the other testing conducted by the 
State of Florida, statistically eliminate the possibility that 
the iVotronic touch-screen voting system was the cause of the 
undervote. The GAO further advised that adequate testing had 
been performed on the iVotronic system for it to have reached 
this conclusion, and the GAO did not recommend any additional 
testing. The GAO did acknowledge that, given the complex 
interaction of people, processes and technology that must work 
effectively together to achieve a successful election, there 
remains a possibility that the large undervote in District-13 
could have been caused by either intentional or unintentional 
factors, such as voters intentionally declining to cast a vote, 
or voters having difficulty with the ballot layout. 
Additionally, statistical analysis and theories, including one 
that attempted to determine voter intent by reviewing other 
voter selections, failed to provide evidentiary support that 
would justify the Task Force overturning the election results 
in light of the machine testing results.

                               CONCLUSION

    Contestant's contest was premised on the allegation that 
thousands of legal votes cast in Sarasota were not counted due 
to pervasive malfunctioning of the iVotronic touch screen 
voting system. On June 14, 2007, the Task Force unanimously 
authorized the GAO to proceed with its Engagement Plan to test 
whether these voting machines contributed to the undervote, and 
on February 8, 2008, the GAO reported that the results of these 
tests did not identify any problems that would indicate the 
iVotronic touch screen voting system was responsible for the 
undervote.
    It is the Constitutional duty of the House of 
Representatives to investigate a valid election contest, yet 
only clear and convincing evidence can provide the basis to 
overcome the presumption of the regularity accorded a State's 
certified results. Absent such evidence, Florida's 
certification of the election results in the Thirteenth 
Congressional District must be confirmed by this House. For the 
foregoing reasons, and based on the recommendations of the Task 
Force, the Committee concludes that the contest should be 
dismissed.

                            ACKNOWLEDGEMENTS

    The Committee acknowledges with appreciation the thorough 
effort of the GAO in helping to conduct the District-13 
investigation and the House Recording Studio under the Chief 
Administrative Officer for providing assistance with the video 
recording of the GAO testing conducted in Florida.





           APPENDIX F--HOUSE OF REPRESENTATIVES PARTY FILINGS



                            C O N T E N T S

                              ----------                              

                               Appendix F

                                                                   Page
1. Jennings v. Buchanan, Notice of Contest, 20 December 2006.....  1625
2. Jennings v. Buchanan, Contestee's Motion to Dismiss Election 
  Contest, 19 January 2007.......................................  1655
3. Jennings v. Buchanan, Appendix to Contestee's Motion To 
  Dismiss Election Contest, 19 January 2007......................  1698
4. Jennings v. Buchanan, Contestee's Supplemental Appendix in 
  Support of Motion to Dismiss Election Contest, 6 April 2007....  2417
5. Jennings v. Buchanan, Contestant Jennings' Memorandum 
  Responding to the Honorable Charles A. Gonzalez's April 3, 2007 
  Letter Regarding The Investigation of the Election For 
  Representative In the One Hundred Tenth Congress From Florida's 
  Thirteenth Congressional District, 13 April 2007...............  2536
6. Jennings v. Buchanan, Supplemental Appendix to Contestant 
  Jennings' Memorandum Responding to the Honorable Charles A. 
  Gonzalez's April 3, 2007 Letter Regarding The Investigation of 
  the Election For Representative In the One Hundred Tenth 
  Congress From Florida's Thirteenth Congressional District 
  Volume I & II, 13 April 2007...................................  2673
7. Jennings v. Buchanan, Documentation of Voting Machine 
  Malfunction Appendix to Contestant Jennings' Memorandum 
  Responding to the Honorable Charles A. Gonzalez's April 3, 2007 
  Letter Regarding The Investigation of the Election For 
  Representative In the One Hundred Tenth Congress From Florida's 
  Thirteenth Congressional District Volume I & II, 13 April 2007.  3265
8. Jennings v. Buchanan, Contestee's Status Conference 
  Memorandum, 13 April 2007......................................  4269
9. Burhans, Glenn, Letter to Rep. Charles Gonzalez, 22 June 2007.  4404
10. Hirsch, Sam, Letter to Rep. Charles Gonzalez, 22 June 2007...  4407



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