[House Report 110-528]
[From the U.S. Government Publishing Office]
110th Congress Rept. 110-528
2d Session HOUSE OF REPRESENTATIVES Part 3
_______________________________________________________________________
DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE THIRTEENTH CONGRESSIONAL DISTRICT OF FLORIDA
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R E P O R T
of the
COMMITTEE ON HOUSE ADMINISTRATION
To accompany
H. Res. 989
Part 3 of 3
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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 3 OF 3
110th Congress Rept. 110-528
2d Session HOUSE OF REPRESENTATIVES Part 3
_______________________________________________________________________
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 3 of 3
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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
ARTHUR 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
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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 3
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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, reports the same
to the House of 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.
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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 formally 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 Sec. 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)
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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, 2007,
pursuant to the Florida Secretary of State's request, Florida
State 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)
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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.
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\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)
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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.
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\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.
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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\
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\14\ Jennings v. Buchanan. Contestee's Motion to Dismiss Election
Contest, 19 January 2007. (See Appendix F)
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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\
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\15\ For document see Appendix B.
\16\ For document see Appendix B.
\17\ For document see Appendix B.
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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)
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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\
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\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)
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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)
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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.
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\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).
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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.
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\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).
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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, 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.
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\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)
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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.
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\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)
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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.
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\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)
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STANDING, TIMING, AND 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.
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\31\ 2 U.S.C. Sec. 382(a).
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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's 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's evidence and
experts' opinions and concluded that the ``testimony of
[Jennings'] experts was nothing more than conjecture and not
supported by credible evidence.'' \33\
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\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)
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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\
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\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).
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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.
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\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)
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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.
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\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).
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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 selections
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.
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APPENDIX G--THE FEDERAL ELECTION CONTESTED ACT OF 1969
C O N T E N T S
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Appendix G
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1. The Federal Election Contested Act of 1969.................... 4423
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