[House Report 110-885]
[From the U.S. Government Publishing Office]



110th Congress 
 2d Session             HOUSE OF REPRESENTATIVES                 Report
                                                                110-885
_______________________________________________________________________

                                     

                                                 House Calendar No. 277


                 FINAL REPORT AND SUMMARY OF ACTIVITIES

                               __________

                              R E P O R T

                                 of the

       SELECT COMMITTEE TO INVESTIGATE THE VOTING IRREGULARITIES

                           OF AUGUST 2, 2007

                     U.S. HOUSE OF REPRESENTATIVES


                                     


                                     

 September 25, 2008--Referred to the House Calendar and ordered to be 
                                printed



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                  SELECT COMMITTEE TO INVESTIGATE THE
                VOTING IRREGULARITIES OF AUGUST 2, 2007

              William D. Delahunt, Massachusetts, Chairman
Artur Davis, Alabama                 Mike Pence, Indiana, Ranking 
Stephanie Herseth Sandlin, South         Member
    Dakota                           Steven C. LaTourette, Ohio
                                     Kenny C. Hulshof, Missouri
                                 ------                                

               Select Committee Staff and Outside Counsel
                             majority staff

                      Davida Walsh, Staff Director
                   Muftiah McCartin, General Counsel
                   Chanelle Hardy, Professional Staff
                    Russ Levsen, Professional Staff
                          Zuraya Tapia, Clerk

                             minority staff

                Josh Pitcock, Republican Staff Director
           Hugh Nathanial Halpern, Republican General Counsel
                Joe Guzzo, Republican Professional Staff
               Aaron Smith, Republican Professional Staff

                        majority outside counsel

               Thomas J. Spulak, Esq. and George Crawford
                         King and Spalding, LLP

                        minority outside counsel

              Mark Paoletta, Esq. and Andrew Snowdon, Esq.
                         Dickstein Shapiro, LLC


                                CONTENTS

                              ----------                              
                                                                   Page
Part I--Final Report.............................................     1
  Summary of the Select Committee's Investigation................     1
  Voting by Electronic Device....................................     3
  The Events Surrounding Roll Call 814...........................    10
  Findings and Analysis..........................................    16
  Recommendations................................................    22
Part II--Summary of Activities...................................    29
  Legislative Activities.........................................    29
  The Select Committee's Oversight Plan..........................    29
  Oversight Activities...........................................    31
  Publications...................................................    32
Part III--Committee Consideration................................    35
Part IV--Appendix................................................    37


                                                 House Calendar No. 277
110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-885

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

                                  _____
                                


 
                 FINAL REPORT AND SUMMARY OF ACTIVITIES

                                _______
                                

 September 25, 2008.--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

                      PART I--FINAL REPORT

    The Select Committee to Investigate the Voting 
Irregularities of August 2, 2007 (the ``Select Committee'') was 
created on August 3, 2007, by House Resolution 611 to 
investigate the circumstances surrounding the record vote 
requested by the gentleman from California (Mr. Lewis) on the 
motion to recommit H.R. 3161, including the Chair's ruling; to 
report to the House a final report regarding findings of fact 
on the actions of any Members, officers, or employees of the 
House during the vote in question; and to recommend changes to 
the rules and procedures of the House of Representatives to 
protect the voting rights of all Members.
    Pursuant to that resolution, the Select Committee hereby 
submits its final report, including its finding of facts, 
analysis, and recommendations.

            Summary of the Select Committee's Investigation

    On September 5, 2007, the appointments to the Select 
Committee made by the Speaker and the Minority Leader pursuant 
to H. Res. 611\1\ 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. 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.
---------------------------------------------------------------------------
    \1\H. Res. 611 states, in pertinent part, ``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.''
---------------------------------------------------------------------------
    On September 27, 2007, the Select Committee, pursuant to 
its mandate set forth in H. Res. 611, issued an interim report 
to the House of Representatives. The interim report included 
the oversight plan of the Select Committee, which described the 
anticipated course of the investigation.
    The Select Committee held a series of briefings and 
hearings designed to inform the members of the Select Committee 
of the mechanics of conducting a record vote on the House 
floor, the Electronic Voting System (EVS), and the precedents 
and procedures relevant to the voting process.\2\ The first of 
these hearings took place on September 27, 2007. That hearing 
gave the members an opportunity to understand the overall 
process of conducting a record vote. It also gave them an 
opportunity to understand the data and documents that are 
typically compiled during a record vote and that the Select 
Committee expected to examine during the course of its inquiry. 
The Clerk and her staff appeared as witnesses.
---------------------------------------------------------------------------
    \2\See part II of this report for a full list of the Select 
Committee's activities.
---------------------------------------------------------------------------
    On October 18, 2007, the Select Committee held a member 
briefing, which consisted of a ``walkthrough'' of the 
Electronic Voting System on the House floor. The briefing was 
conducted by the Clerk, her staff, and the Parliamentarian.
    On October 25, 2007, the Select Committee held a hearing on 
Rules, Precedents, Custom and Practice regarding voting in the 
House of Representatives. Former House Parliamentarian Charles 
W. Johnson and Chief Tally Clerk Mark O'Sullivan appeared as 
witnesses.
    The Select Committee conducted a thorough investigation of 
Roll Call 814. At the outset, the Select Committee sent a 
``Dear Colleague'' to all Members of the House of 
Representatives inviting any and all Members who were present 
in the chamber the night of August 2, 2007, and who had direct, 
firsthand, personal knowledge, to share that information with 
the Select Committee if they wished. Ultimately, the Select 
Committee interviewed four Members and seventeen staff members 
of the House. The staff interviews included staff from the 
Office of the Clerk, the Office of the Parliamentarian, and 
Minority and Majority Leadership Offices. The Members 
interviewed were Messrs. Hoyer, Boehner, Blunt, and McNulty. 
The Select Committee reviewed over 5,000 pages of documents 
related to Roll Call 814. It closed its investigation by 
conducting two days of public hearings to receive testimony 
regarding Roll Call 814 from important witnesses.
    The Select Committee, on a bipartisan basis, made findings 
and recommendations discussed later in this report. The 
material which follows represents countless hours of research, 
analysis, and discussion. The Select Committee's investigation 
would have been far more difficult without the cooperation and 
assistance of a number of offices and individuals. Chief among 
those the Select Committee would like to acknowledge are the 
offices of the Clerk and the Parliamentarian. The Select 
Committee also extends its appreciation to former 
Parliamentarian Charles Johnson and CRS for their advice and 
consultation throughout the investigation and in the 
development of its recommendations.

                     Voting by Electronic Device\*\
---------------------------------------------------------------------------

    \*\The material in this section of the report is derived from 
multiple sources, including 
John V. Sullivan, Constitution, Jefferson's Manual, and Rules of the 
House of Representatives of the United States, 110th Congress, H. Doc. 
109-157, 2007 (hereinafter ``Manual''); Member Briefing on Voting in 
the House of Representatives--The Rostrum and the Electronic Voting 
System: A ``Walkthrough'' by the Clerk of the House Lorraine C. Miller, 
Oct. 18, 2007; Michael L. Koempel & Judy Schneider, CRS Memorandum to 
Select Committee Chairman, Concordance of Questions and Answers from 
Hearings of the Select Committee to Investigate the Voting 
Irregularities of August 2, 2007, Dec. 2007; Clerk's Briefing to House 
Committee on House Administration, Aug. 16, 2007 CLERK 467-494; the 
hearings held by the Select Committee; interviews conducted by the 
Select Committee and its staff; and other materials cited in the 
appendix IV of this report.
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Overview
    The Electronic Voting System (EVS) was installed in the 
House chamber in 1972 pursuant to the Legislative 
Reorganization Act of 1970 and was first used on January 23, 
1973.\3\ Under clause 2(a) of rule XX, voting by electronic 
device is the preferred method for conducting a record vote: 
``Unless the Speaker directs otherwise, the Clerk shall conduct 
a record vote or quorum call by electronic device.''
---------------------------------------------------------------------------
    \3\The permissive use of an EVS was incorporated in the Legislative 
Reorganization Act of 1970 (84 Stat. 1140, 1157) and was made part of 
the standing Rules of the House in the 92d Congress. (Manual  1014.)
---------------------------------------------------------------------------
    The current EVS was installed in January, 2004, and it 
represents the fourth major upgrade of the EVS since its 
inception in 1972. The main hardware is located in the Rayburn 
House Office Building and is connected to the House floor by a 
secure line. There are 47 EVS input devices on the House floor, 
including a primary terminal that is located on the rostrum and 
controlled by the seated tally clerk. The remaining 46 devices 
are voting stations located behind the Members seats. In 
addition to these input devices, there are several terminals on 
the House floor that allow Members and staff to view the 
progress of the vote and the results in real time. These are 
located at the leadership tables and in the rear of the chamber 
and do not allow input into the system. There is also a 
secondary EVS terminal in the Office of Legislative Operations 
in the Capitol.
    A vote is conducted by three tally clerks. There is a 
``seated'' tally clerk who operates the primary terminal,\4\ a 
``standing'' tally clerk who stands on the lowest level of the 
rostrum and who assists the seated tally clerk, and a tally 
clerk who monitors the vote at the secondary EVS terminal in 
the Office of Legislative Operations.
---------------------------------------------------------------------------
    \4\The seated tally clerk sits at the primary EVS terminal on the 
Speaker's Dais. Here, the tally clerk can initiate and terminate a 
vote, illuminate and release the display boards, begin the clock that 
tracks the minimum amount of time for the vote, open and close the 
voting stations, identify the vote (e.g. suspension of the rules or 
agreeing to the amendment), and process and verify well cards for cast 
votes or for changed votes.
---------------------------------------------------------------------------
    Members may cast or change their votes by inserting their 
personal voting card into one of the 46 voting machines and 
pushing one of three buttons--a green button for ``yea,'' a red 
button for ``nay,'' or an amber button for ``present.'' In 
addition to voting at an electronic voting station, Members may 
cast their votes manually in the area in front of the rostrum 
referred to as the ``well.'' To do so, Members retrieve an 
appropriately colored card (called a ``well card'') from the 
table in the well. On the card, they write their name, 
district, and the State or territory they represent and turn it 
in to the standing tally clerk. The standing tally clerk 
verifies the identifying information,\5\ record the Roll Call 
number on the card, and hands it to the seated tally clerk, who 
enters the vote into the EVS.
---------------------------------------------------------------------------
    \5\ The standing tally clerk may add identifying information to a 
well card where the information provided by the Member may still be 
ambiguous, for example, where the voting Member shares the same last 
name as other Members, the tally clerk may add the voting Member's 
first name or initial to provide clarity.
---------------------------------------------------------------------------
    There are display boards above the east and the west doors 
of the chamber, referred to as ``electronic summary displays.'' 
These display the time remaining in the vote and the running 
tally. There is another display board behind the Chair, which 
displays the vote of each Member.
    Members may verify their votes at any voting station or by 
checking the display board above the rostrum. As votes are cast 
at the voting stations, the EVS automatically records each vote 
and updates the display boards behind the Chair and above the 
east and west doors. The system refreshes every 1\1/2\ seconds 
and appears to be virtually instantaneous to most observers. A 
vote cast or changed by well card will not be reflected on the 
display boards until after the seated tally clerk has entered 
it in the EVS terminal and the computer refreshes the displays.
    Although the goal of the clerks is to expeditiously enter a 
Member's well vote and have it displayed as quickly as 
possible, the process inevitably takes longer than when a 
Member votes electronically. Sometimes the seated tally clerk 
enters and verifies each well card into the EVS as the standing 
tally clerk hands over the card--which can take from 2 to 10 
seconds. At other times, particularly when a number of Members 
are voting in the well, the seated tally clerk will enter and 
verify them as a batch--a few seconds per card can quickly add 
up to several minutes. Consequently, depending on the speed and 
sequence of actions taken by the seated tally clerk, well votes 
will take a varying amount of time to be reflected on the 
summary board.
    For purposes of the vote total, although a Member may cast 
and change his or her vote any number of times during a record 
vote, each Member has only one vote--the last one cast. 
Nevertheless, all EVS transactions are captured by the EVS and 
included in the transaction log. The EVS was designed to allow 
Members to change their votes at the voting stations so long as 
the voting stations are open. However, in 1976, Speaker Albert 
announced changes to the voting policy, still in effect, that 
allows changes at voting stations to occur only during the 
first 10 minutes of a 15-minute vote. To change a vote after 
the first 10 minutes, a Member must vote in the well by well 
card, unless the Member voted present, in which case that 
Member may change his or her vote until the voting stations are 
closed.\6\ During a 5-minute vote, Members may change their 
vote at any station throughout the duration of the vote.\7\
---------------------------------------------------------------------------
    \6\Speaker Albert, Mar. 22, 1976, p. 7394 (Manual,  1014).
    \7\This policy was announced by Speaker O'Neill. Jan. 4, 1977, pp. 
53-70 (Manual,  1014).
---------------------------------------------------------------------------
    The seated tally clerk keeps a handwritten list of Members 
who change, and how they change, their votes after the first 10 
minutes. This list is given to the reading clerk to announce 
when the Chair inquires of Members whether anyone wishes to 
vote or to change their vote. If, during the same record vote, 
a Member submits a subsequent well card (for example, to change 
a vote) the new well card is numbered and stapled to the 
previous well card cast by the Member.\8\ If that well card is 
submitted during the last 5 minutes of 15-minute vote or after 
the Chair inquires for changes, the subsequent well vote is 
announced by the reading clerk, even if it is a duplicate (in 
which case, the reading clerk would announce how that Member 
had previously voted).
---------------------------------------------------------------------------
    \8\The seated tally clerk may verify his or her recording of well 
cards by checking the cards against a screen display on the monitor or 
by calling by phone the Legislative Operations Office staff to confirm 
the well cards against a printout from the EVS made by that office.
---------------------------------------------------------------------------
    Members are responsible during electronic votes for 
verifying that their votes are recorded accurately.\9\ This is 
particularly important because the precedents presume the 
technical accuracy of the EVS; and, thus, the Speaker declines 
to entertain requests to correct the Journal and Record on 
votes taken by electronic device.\10\
---------------------------------------------------------------------------
    \9\This policy was announced in 1973 by Speaker Albert and has been 
adopted by all subsequent Speakers. Manual,  1017.
    \10\Id.
---------------------------------------------------------------------------
    Data for each vote taken by electronic device is collected 
in several files: transaction log, checkpoint file, vote 
journal log, and hardware and software error logs.\11\ The 
transaction log records all voting transactions by each Member 
during a particular vote, including every vote cast, the time 
each vote is cast, any changes, and the manner in which the 
vote is cast (i.e. from a voting terminal or by well card) and 
allows for the generation of a detailed report. The checkpoint 
file is written at the conclusion of the record vote and 
contains a snapshot of the vote data at the end of the vote. 
The vote journal log records when a vote begins and ends and 
when voting stations are closed, opened, or reopened. The 
hardware and software error logs record any errors which occur 
during the execution of the record vote.
---------------------------------------------------------------------------
    \11\These files are only available internally within the House and 
not to the public.
---------------------------------------------------------------------------
Closing an Electronic Vote
    Clause 2(a) of rule XX sets the minimum time for an 
electronic vote at 15 minutes, except in those circumstances 
where House rules permit the Speaker or the Chairman of the 
Committee of the Whole to reduce the minimum time to 5 
minutes--such as clause 8 or 9 of rule XX\12\ or clause 6 of 
rule XVIII.\13\
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    \12\Clause 8 of rule XX allows the Speaker to postpone certain 
questions and to ``cluster'' them for voting at a designated time or 
place in the legislative schedule. These questions include such 
questions as approval of the Journal, passing a bill or joint 
resolution; adopting a resolution or concurrent resolution; and 
agreeing to a conference report or a motion to instruct. Clause 8(c) 
provides that ``The Speaker may reduce to five minutes the minimum time 
for electronic voting on a question postponed under this clause or on a 
question incidental thereto, that follows another electronic vote 
without intervening business, so long as the minimum time for 
electronic voting on the first in any series of questions is 15 
minutes.'' Clause 9 provides that ``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.''
    \13\Clause 6 of rule XVIII permits the Chairman of the Committee of 
the Whole to reduce to 5 minutes (1) a vote that follows a quorum call; 
(2) votes on pending amendments provided the first vote is 15 minutes; 
and (3) votes on postponed questions provided the first vote in the 
series is a 15-minute vote.
---------------------------------------------------------------------------
    The technical process for closing an electronic vote in the 
EVS can be viewed as a five-step process. Each step is 
generally triggered by statements uttered by the Chair and 
requires the seated tally clerk to select an option on the 
primary computer to effect each step. In his testimony before 
the Select Committee, Chief Tally Clerk Mark O'Sullivan stated, 
``The whole procedure of conducting votes and the closing of 
votes is almost the same since I have been here,'' although 
``each vote has little permutations.''\14\
---------------------------------------------------------------------------
    \14\Select Committee Hearing, ``Voting in the House of 
Representatives--Rules, Procedures, Precedents, Customs, and 
Practice.'' Oct. 25, 2008 p. 32.
---------------------------------------------------------------------------
    Closing the voting stations. The first step of the process 
is called ``closing the voting stations.'' This typically 
occurs when the Chair asks whether any Members wish to vote or 
change their votes or after the first 10 minutes of a 15-minute 
vote. This action signals the seated tally clerk to close the 
46 voting stations on the back of the chairs in the chamber to 
further input, requiring all additional votes or changes to be 
cast by well card. However, the seated tally clerk may exercise 
some discretion in deciding when to close the voting stations. 
Though the typical procedure is to close the voting stations 
when the Chair utters the phrase ``do any Members wish to vote 
or change their vote,'' the clerks explained to the Select 
Committee that if the tally clerk perceives Members are still 
seeking to vote, and it would be more efficient to leave the 
stations open rather than requiring Members to vote in the well 
by well card, the tally clerk may leave the stations open, or 
may reopen the stations after they have been closed. This is 
also the point where a handwritten list of all Members who 
changed their votes, and how they changed, after the first 10 
minutes of a 15-minute vote (which is prepared by the seated 
tally clerk) is announced by the reading clerk (e.g. Mr. Davis, 
off ``aye,'' on ``no''). Any votes or changes submitted by 
Members after this point are announced immediately upon being 
entered into the EVS; no further list is kept.
    Terminating the vote. The second step of the process is 
called ``terminating the vote.'' A vote is terminated at the 
direction of the Chair, when there are no Members in the well 
attempting to cast their votes, the seated tally clerk has 
finished entering the data from all of the well cards 
submitted, and when the EVS has ``absorbed'' all votes cast 
(i.e. the EVS has processed and refreshed the displays to 
reflect that data). At that time, the seated tally clerk will 
indicate to the standing tally clerk that the tally displayed 
above the chamber's doors is reliable and selects the option on 
the EVS terminal to terminate the vote. The standing tally 
clerk prepares the ``tally slip'' to hand to the 
Parliamentarian, who in turn hands it to the Chair to include 
in the Chair's announcement of the result of the vote.\15\
---------------------------------------------------------------------------
    \15\The ``tally slip'' is a small slip of white paper on which the 
tally clerk writes down for the Chair the vote tally. The tally slip is 
not given to the Chair until the tally clerks confirm that the voting 
stations are closed and that all well votes have been properly 
recorded. Multiple tally slips can be filled out by the standing tally 
clerk and passed up through the Parliamentarian to the presiding 
officer. This typically occurs if Members present themselves in the 
chamber or the well, indicating their desire to vote or change their 
vote after step 1 but before step 5, which is the final release of the 
displays.
---------------------------------------------------------------------------
    Setting the vote to final. The third step, ``setting the 
vote to final,'' causes the word ``FINAL'' to appear on the 
summary display boards. Votes may still be entered after the 
Clerk has selected this option in the EVS. Neither the 
selection of this option in the EVS, nor the display of the 
word ``FINAL'' on the display board, bears parliamentary 
significance. This step typically occurs when the Chair is 
reading the tally slip.
    Releasing the Displays. The fourth step, ``releasing the 
displays,'' typically occurs as the Chair completes reading the 
vote tally and states an unequivocal announcement of result. 
This is the first step in releasing the EVS.
    House Parliamentarian John Sullivan explained what 
constitutes an unequivocal announcement of result: ``Again, it 
is totality of the circumstances. I can recall on occasion when 
a Chair uttered what in a transcript would look like an 
unequivocal statement of result, but it is just because the 
last syllable was coming out of his mouth just as he wanted to 
pull up because a Member was running down the aisle. That vote 
was taken because 700,000 Americans wanted it to be recorded. * 
* * We rationalize that the Chair hadn't put the period on the 
end of the sentence in that circumstance. But usually if the 
Chair says, `The amendment is adopted,' that is the unequivocal 
statement of the result. `The bill is passed.' When he utters 
that sentence, that should be the end of the vote.''\16\
---------------------------------------------------------------------------
    \16\ Member Briefing on Voting in the House of Representatives--The 
Rostrum and the Electronic Voting System: A ``Walkthrough'' by the 
Clerk of the House Lorraine C. Miller. Briefing. Oct. 18, 2007, p. 18.
---------------------------------------------------------------------------
    Verifying the release. Fifth and finally, the EVS asks for 
``verification of the release.'' The first four steps may be 
reversed. However, once the fifth step is completed, the vote 
is closed. At this point, the EVS is shut down, the display 
boards are cleared, and the vote may not be reopened.
    After the vote is closed, the tally clerks on the rostrum 
proof the well card votes with the tally clerk located in the 
Office of Legislative Operations. After this proof has been 
completed, the vote totals are released to the Clerk's public 
website.
    The Select Committee heard testimony that the practice of 
tally clerks in closing down a vote varies slightly among 
specific clerks. Some of the tally clerks actually wait until 
the Chair ``gavels down the vote'' and then ``clicks through 
those four or five steps just simultaneously.'' Furthermore, 
some of the newer clerks may not be as fast as some of the more 
experienced ones.
    On occasion (such as when a vote must be restarted or there 
is a technical difficulty that would require the vote to be 
taken by call of the roll), the tally clerk may opt to 
``abort'' a vote; that is, cancel a vote that is in progress. 
As the Select Committee learned, this is very rare.
The Respective Roles of the Chair, the Clerk, and the Parliamentarian 
        in the Direction and Conduct of a Vote by Electronic Device
    Clause 2(a) of rule XX sets forth the respective roles of 
those involved in a record vote. It states:

          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.

    This rule is understood to mean that a vote is conducted by 
the tally clerks at the direction of the Chair.
    The Parliamentarian's role is to assist the Chair in 
comporting with the rules, precedents, and practices of the 
House. As such, the Parliamentarian may offer guidance and 
recommendations to the presiding officer on the decision of 
when to close a vote. The Parliamentarian may also, as an agent 
of the Chair, advise the tally clerk on the proper conduct of a 
vote.
    There have long, if not always been, two tally clerks, who 
have traditionally been viewed as nonpartisan ``agents of the 
Chair.'' Although the tally clerks are specifically referenced 
in the Rules of the House, much of their role and 
responsibilities have been established through custom, usage, 
and tradition. Until 1973, and for 184 years prior, the two 
tally clerks processed roll call votes manually. The role of 
the tally clerks was not perceived to change once the 
electronic voting system was adopted, at least not 
significantly enough to warrant a formal rules change or 
codification. They were and continue to be appointed solely to 
do the business of conducting a vote and to ensure that Members 
are recorded accurately.
     The seated tally clerk is charged with the technical 
aspects of initiation and termination of the EVS, as well as 
the operation of the rostrum EVS terminal throughout a vote. In 
most cases, the seated tally clerk initiates the EVS when the 
Chair states, ``The yeas and nays are ordered. Members will 
record their vote by electronic device.''
    In the normal course of a vote, the tally clerks will take 
instruction from the Chair by listening to certain ``cues.'' 
However, upon occasion, the tally clerk may interject a 
suggestion. For example, an inquiry of the Chair whether any 
Member wishes to vote or to change their vote is a cue to the 
tally clerk to turn off the 46 voting stations available to 
Members, requiring Members who still need to vote to come to 
the well. In the example given here, the tally clerk may 
suggest directly to the Chair or through the Parliamentarian 
that, if there are a number of Members who have not yet voted, 
the voting stations be left open or reopened as an efficient 
way to process a large number of votes. The tally clerks 
ultimately provide the Chair a vote tally that the Clerk has 
determined accurately reflects each vote cast. Under the long-
standing practices and traditions of the House, this 
determination is communicated to the Chair via the tally slip.
    Under clause 2(a) of rule XX, the Chair directs, or 
controls, the vote. As stated by Charles Johnson, ``[T]he 
Chair, in his or her nonpartisan capacity, conducts the vote, 
and it can't be any other way.''\17\ The Chair's control of the 
vote is exercised within the applicable rules, precedents, and 
best practices in consultation with the Parliamentarian.
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    \17\Hearing, Oct. 25, 2008, p. 11.
---------------------------------------------------------------------------
    Once the minimum time for a vote has expired, the Chair 
determines when to close the vote.\18\ However, once the voting 
system has been released after the completion of the fifth and 
final step performed by the seated tally clerk, the Chair no 
longer has the discretion to permit additional votes--the EVS 
cannot return to a previous vote.
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    \18\With respect to the amount of time a vote may be held open, the 
precedents of the House dictate that ``on a call of the House, or a 
vote, conducted by electronic device, Members are permitted a minimum 
of 15 minutes to respond, but it is within the discretion of the Chair, 
following the expiration of 15 minutes, to allow additional time for 
Members to record their presence, or vote, before announcing the 
result.'' Manual,  1014.
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    The Chair's determination of when to close a vote has been 
described by Charles Johnson as based on the ``totality of the 
circumstances.'' Of particular importance to the Chair is the 
enfranchisement of Members. The Select Committee heard 
testimony regarding the traditional view of the Speaker that it 
is the Chair's obligation to protect the right of a Member to 
vote because each vote cast is on behalf of the approximately 
600,000 citizens that Member represents. However, the Chair has 
a dual obligation to conduct the vote efficiently. The Chair's 
obligation to protect a Member's right to vote is not so great 
as to require the Chair to hold open a vote indefinitely.\19\ 
Indeed, since the 103rd Congress, the Speaker has announced 
that each occupant of the Chair would have the Speaker's full 
support in striving to close each electronic vote at the 
earliest opportunity and that Members should not rely on 
signals relayed from outside the chamber to assume that votes 
will be held open until they arrive.\20\
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    \19\``Because the Chair has the discretion to close the vote and to 
announce the result at any time after 15 minutes have elapsed, those 
precedents guaranteeing Members in the chamber the right to have their 
votes recorded even if the Chair has announced the result (e.g., V, 
6064, 6065, VIII, 2143), which predate the use of an electronic voting 
system, do not require the Chair to hold open indefinitely a vote taken 
by electronic device.'' (Manual,  1014).
    \20\Manual,  1014.
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    The dual--and often conflicting--obligation of 
enfranchisement and efficiency has resulted in the practice of 
``multiple tally slips.'' It is not uncommon for the Chair, 
having almost completed the announcement of a vote from a tally 
slip, to permit a tardy Member who has just entered the chamber 
to cast a vote. In that case, the tally clerk prepares a new 
tally slip reflecting the additional vote. As long as the EVS 
has not been released, it has been the practice of the Chair to 
permit latecomers to cast a vote. Often, as the tally clerk 
prepares a new tally slip, another latecomer enters the Chamber 
and is afforded the same courtesy.
    There is one rule that impacts the discretion of the Chair 
as to when a vote may be closed after the minimum time has 
expired. That rule was adopted on January 5, 2007, as a new 
sentence to clause 2(a) of rule XX, which states: ``A record 
vote shall not be held open for the sole purpose of reversing 
the outcome of such vote.''\21\ The Chair has held that this 
rule sets a standard that may be challenged not by a point of 
order during the vote but by the offering of resolution 
alleging a violation of the rule as a question of the 
privileges of the House under rule IX after the vote has been 
announced.\22\
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    \21\This discretion of the Chair and the arguably unresolved 
application and interpretation of the new sentence in 2(a) has been the 
source of controversy in the House chamber throughout the 110th 
Congress. Responses to numerous parliamentary inquiries and questions 
of privilege regarding the application of this provision have been 
recorded in the House Rules and Manual as follows: ``In response to a 
parliamentary inquiry concerning the rule on holding votes open for the 
sole purpose of reversing the outcome, the Chair advised that the first 
record vote of a legislative day, especially if unexpected, may require 
more time to complete (Jan. 18, 2007, p.__). In addition, the Chair is 
constrained to differentiate between activity toward the establishment 
of an outcome on the one hand and activity that might have as its 
purpose the reversal of an already established outcome on the other. As 
such, the Chair may hold the vote open beyond expiration of the minimum 
time in order to allow all Members to vote.'' (Manual,  1014.)
    \22\76 Cong. Rec. H3193 (daily ed. May 8, 2008).
---------------------------------------------------------------------------
    One of the foundations of parliamentary procedure in the 
House is that the Chair will be impartial in conducting votes. 
The Chair's call of the vote result must be carried out without 
partisanship\23\ and must reflect the true and accurate tally 
as provided by the Clerk.
---------------------------------------------------------------------------
    \23\Deschler-Brown Precedents 1, ch. 30.
---------------------------------------------------------------------------
    In short, the Chair has nearly complete discretion as to 
when to close a vote and exercises impartiality in the control 
of a vote and the announcement of a result. The Chair provides 
instruction and direction to the tally clerks, with the advice 
and counsel of the Parliamentarian. As an agent of the Chair, 
it is the tally clerks' responsibility to certify that the 
tally provided the Chair is accurate.

                  The Events Surrounding Roll Call 814

    By any measure, the week of August 2, 2007, was difficult. 
The House was scheduled to depart for the August District Work 
Period on August 3. The House was busy trying to complete much 
of its legislative agenda, including completing the outstanding 
appropriations measures. In fact, at the close of the 
legislative day of Thursday, August 2, the House had been in 
session for 51 hours that week and 65 hours the previous week. 
The crush of legislative business, combined with the partisan 
tone of the week's debate, created a contentious atmosphere 
within the House chamber. John Sullivan, the Parliamentarian of 
the House, described the atmosphere this way: ``The chamber was 
about as raucous as it gets. This week of proceedings in the 
House was, I don't mean to be judgmental, but it was the 
ugliest week I can remember in the House.'' Mr. Sullivan noted 
that throughout the events of the evening of August 2, the 
membership was exercising little restraint in their deportment 
on the House floor.\24\
---------------------------------------------------------------------------
    \24\Select Committee Interview of House Parliamentarian John 
Sullivan, Feb. 27, 2008, p. 366. (Hereinafter ``Sullivan interview''.)
---------------------------------------------------------------------------
    On the night of August 2, 2007, the House was completing 
consideration of H. R. 3161, the funding bill for the 
Department of Agriculture and related agencies for the fiscal 
year 2008. After concluding a series of 11 two-minute votes on 
the remaining amendments to the bill, the Committee of the 
Whole rose and reported the bill back to the House as amended. 
At this point, the gentleman from New York, Mr. McNulty, 
assumed the Chair as Speaker pro tempore.
    At approximately 10:22 p.m.,\25\ the gentleman from 
California, Mr. Lewis, the Ranking Republican Member of the 
Committee on Appropriations, offered on behalf of the Minority 
a motion to recommit the bill with instructions. The 
instructions contained in the motion sought to report the bill 
back to the House promptly with an amendment that ``(1) 
prohibits any funds in the act (including grant funds) from 
being used to employ an alien who is not authorized to be 
employed in the United States; and (2) prohibits any funds in 
the act for rental housing assistance programs to provide 
assistance to an alien not authorized to receive such 
assistance pursuant to 213A of the Immigration and Nationality 
Act.''\26\
---------------------------------------------------------------------------
    \25\All times cited in this report are keyed to the time code on 
the video recording of floor proceedings prepared by the Office of the 
Chief Administrative Officer for the use of the Select Committee.
    \26\It is important to note that the instruction did not require 
that the amendment be reported back to the House ``forthwith,'' meaning 
that, if the motion were adopted, consideration on the bill would end 
until further action by the Committee on Appropriations. The practical 
effect would have been to delay any further consideration of the bill 
until after the August District Work Period.
---------------------------------------------------------------------------
    The Chair put the question on the motion. When Mr. McNulty 
announced his opinion that the ``noes'' prevailed, Mr. Lewis 
requested the yeas and nays, and the Chair announced that the 
15-minute vote would be taken by electronic device.
    Roll Call 814 began at approximately 10:34 p.m.
A Close Vote
    The vote proved to be extremely close. Both the video 
evidence and the log from the EVS examined by the Select 
Committee show that the vote tally remained close for much of 
the vote, usually within 5 to 10 votes one way or the other. At 
approximately 10:35 p.m., 1 minute from the start of the vote, 
Catlin O'Neill, a floor assistant to the Speaker,\27\ left her 
position on the right side of the rostrum and walked to the 
Democratic leadership table. At 10:38:30 p.m., Ms. O'Neill 
returned to the rostrum, running down the aisle on the 
Democratic side of the House chamber, and had a 3-second 
interaction with Mr. McNulty. Although neither Ms. O'Neill nor 
Mr. McNulty had any specific recollection of that conversation, 
Ms. O'Neill testified that she believed she was asking him to 
announce the time remaining in the vote.\28\ Seconds after this 
interaction, the Chair banged the gavel and announced that 
``Members have 10 minutes left to vote. The vote is on the 
motion to recommit.''
---------------------------------------------------------------------------
    \27\During her interview with the Select Committee, Ms. O'Neill 
described her role as generally being responsible for the scheduling of 
presiding officers and communicating with the rostrum staff and 
presiding officers, typically through the parliamentarians, during the 
conduct of a vote. Select Committee Interview of Catlin O'Neill, Feb. 
25, 2008, p. 339. (Hereinafter ``O'Neill interview''.)
    \28\O'Neill interview; Select Committee Interview of the Hon. 
Michael R. McNulty, Apr. 9, 2008, p. 444. (Hereinafter ``McNulty 
interview''.)
---------------------------------------------------------------------------
    This was the first of three interactions between Ms. 
O'Neill and Mr. McNulty during the course of Roll Call 814. The 
second interaction occurred at 10:46 p.m., 12 minutes into the 
vote. Here, the video again shows Ms. O'Neill returning to the 
rostrum from the Democratic leadership table. She appears to 
speak to Mr. McNulty for 3 seconds, turns away for 4 seconds, 
and then appears to speak to him again for 2 seconds. Although 
neither Ms. O'Neill nor Mr. McNulty had a specific recollection 
of the substance of that conversation, Mr. McNulty again banged 
the gavel seconds thereafter and announced that ``Members have 
2 minutes in which to vote on the motion to recommit.''
Three Pivotal Minutes
    By all accounts, the chamber was noisy. At 10:49 p.m., 15 
minutes into the vote, the Majority Leader, Mr. Hoyer, walked 
down the center aisle, and approached the right side of the 
rostrum. As Mr. Hoyer walked through the well at 10:49:34 p.m., 
Jerry Hartz, the Speaker's Director of Floor Operations, 
signaled to the Speaker, who then turned and proceeded to the 
front of the rostrum to vote by well card. The Speaker's vote 
brought the tally to 214 yeas and 214 nays.
    Mr. Hoyer has acknowledged that he yelled several times, in 
a voice he believed loud enough to be heard by the Chair, 
``Close it [the vote] down,'' or words to that effect, and 
appeared to make a gaveling motion in the direction of the 
Chair.\29\ These comments were heard by at least six 
professional staff on the rostrum that evening, but Mr. McNulty 
testified before the Select Committee that he ``absolutely did 
not hear that.''\30\
---------------------------------------------------------------------------
    \29\Select Committee Interview of the Hon. Steny Hoyer, Apr. 16, 
2008, p. 514. (Hereinafter ``Hoyer interview''.)
    \30\See, e.g., Select Committee Interview of Kevin Hanrahan, Feb. 
8, 2008, p. 157. (Hereinafter, ``Hanrahan interview''.); Select 
Committee Interview of De'Andre Anderson, Feb. 8, 2008, p. 131. 
(Hereinafter ``Anderson interview''.). See also, Hearing of the Select 
Committee to Investigate the Voting Irregularities of August 2, 2007. 
Investigative Hearing Regarding Roll Call 814, Day 1 and 2 (May 13 and 
14, 2008).
---------------------------------------------------------------------------
    Although Mr. Hoyer testified that he had no recollection of 
the Speaker voting,\31\ his comments coincided with her voting.
---------------------------------------------------------------------------
    \31\Hoyer interview, p. 502.
---------------------------------------------------------------------------
    The third interaction between Ms. O'Neill and Mr. McNulty, 
occurred at 10:49:46 p.m., slightly over 15 minutes into the 
vote. Mr. Hoyer approached Ms. O'Neill, who was standing in the 
well on the right side of the rostrum. Mr. Hoyer testified that 
he told Ms. O'Neill that he wanted the vote closed while the 
Majority was prevailing.\32\ Approximately 5 seconds later, Ms. 
O'Neill turned and appeared to have a conversation with Mr. 
McNulty: Mr. McNulty stood up, leaned towards Ms. O'Neill, and 
gestured with his hand. Here again, Ms. O'Neill and Mr. McNulty 
could not recall the specifics of this conversation. Both Ms. 
O'Neill and Mr. McNulty testified that at some point Ms. 
O'Neill told the Chair that the vote was going to be close, and 
they both testified that Ms. O'Neill did not instruct Mr. 
McNulty to close the vote.\33\
---------------------------------------------------------------------------
    \32\Id.
    \33\O'Neill interview, p. 446.
---------------------------------------------------------------------------
    The video shows that at 10:50:06 p.m., the Parliamentarian, 
John Sullivan, crossed the well and appeared to have a brief 
conversation with Ms. O'Neill and Mr. Hoyer in the well at the 
base of the rostrum.
    At 10:50:05 p.m., 16 minutes and 3 seconds after the vote 
began, the tally shown on the video turned to 214 yeas and 214 
nays. The Chair struck the gavel and at 10:50:07 p.m. began to 
announce that tally without waiting for a written tally slip. 
However, Mr. McNulty never completed the statement because, as 
he was in the process of making the announcement at 10:50:12 
p.m., Messrs. Mitchell and Lampson, both Democratic Members, 
submitted well cards to the standing tally clerk changing their 
votes from ``aye'' to ``no.''
    As the well cards of Messrs. Mitchell and Lampson were 
being processed by the clerks at 10:50:16 p.m., three 
Republican Members, Ms. Ros-Lehtinen and Messrs. Lincoln and 
Mario Diaz-Balart, entered the well to change their votes from 
``no'' to ``aye.'' Mr. McNulty testified that it was his 
intention to close the vote after the last of these three well 
cards had been entered (that of Mr. Mario Diaz-Balart) if no 
other Member showed up in the chamber to vote.\34\ Mr. McNulty 
further testified that ultimately he made this decision because 
he observed no other Members in the well preparing to vote at 
this time, and he was concerned that holding the vote open any 
further might trigger criticism that he had violated clause 
2(a) of rule XX.\35\
---------------------------------------------------------------------------
    \34\McNulty interview, p. 444.
    \35\Mr. McNulty here is referring to the new sentence in clause 
2(a) of rule XX that states: ``A record vote by electronic device shall 
not be held open for the sole purpose of reversing the outcome of such 
vote.''
---------------------------------------------------------------------------
    Testifying that he was frustrated that the vote had 
remained open after the announcement of 214 yeas and 214 nays, 
the Majority Leader confronted Mr. Sullivan on the second step 
of the rostrum at 10:50:34 p.m., 29 seconds after Mr. McNulty's 
aborted attempt to close the vote. Mr. Hoyer can be heard 
saying in an animated tone: ``We control this House, not the 
Parliamentarians.'' Mr. Hoyer testified that he was angry 
because he believed, albeit mistakenly, that one of the 
Parliamentarians had advised Mr. McNulty to keep the vote 
open.\36\
---------------------------------------------------------------------------
    \36\Hoyer interview, p. 503, 516.
---------------------------------------------------------------------------
    At 10:51:25 p.m., approximately 18 minutes after the vote 
began, the Chair announced for a second time the result as 214 
yeas and 214 nays. Unlike the initial announcement, however, 
Mr. McNulty added the words ``the motion is not agreed to,'' 
and banged the gavel. The Chair read the vote totals from the 
electronic summary board rather than the usual practice of 
waiting for a tally slip. As the gavel fell, Mary Kevin Niland, 
the reading clerk, was still announcing Mr. Mario Diaz-Balart's 
well vote. Due to the inherent short lag time in updating the 
summary display, less than a second after Mr. McNulty announced 
the result, the electronic display board upticked to 215 yeas 
and 213 nays and displayed the word ``FINAL.''\37\ The 
Republican side of the chamber erupted in anger as they 
believed that the Majority had purposefully taken the ``win'' 
from them.
---------------------------------------------------------------------------
    \37\The word ``FINAL'' appears on the display board when the Tally 
Clerks have executed the third step in a five-step process for closing 
an electronic vote in the EVS. The word connotes the status of the 
computer file and its display. It has no parliamentary or legal 
significance.
---------------------------------------------------------------------------
``Uncharted Territory''
    The inconsistency between Mr. McNulty's announcement and 
the total displayed on the summary board caused great confusion 
among the rostrum staff. Many of them described to the Select 
Committee that they were ``shocked'' or ``stunned'' by the 
announcement. The confusion among the Clerk's staff was best 
summed up by Mr. Kevin Hanrahan, the standing tally clerk 
during Roll Call 814 this way: ``We were off track, and we were 
in no man's land at that point.''\38\
---------------------------------------------------------------------------
    \38\Hanrahan interview, p. 160.
---------------------------------------------------------------------------
    Mr. Sullivan described the House as having crossed into 
``uncharted territory.''\39\ The appearance of the word 
``FINAL'' on the summary board exacerbated the confusion and 
agitation of the Members in the chamber. Mr. McNulty testified 
that he knew he had made an error. ``I was just kind of stunned 
when I looked up and saw the 215-213 and the word `FINAL' after 
it. I'll be very honest with you; I did not know what to do 
next.''\40\ Mr. Hoyer testified that, because of the uptick, he 
knew that the ``vote could not stand'' and that the ``Minority 
was justifiably outraged.'' Furthermore, he approached John 
Sullivan within 45 seconds of Mr. McNulty's announcement to ask 
him the best way to vacate the vote.\41\
---------------------------------------------------------------------------
    \39\Sullivan interview, p. 360.
    \40\McNulty interview, p. 439.
    \41\Hoyer interview.
---------------------------------------------------------------------------
    Numerous witnesses, including John Sullivan and Charles 
Johnson, testified that, since 1974 when the EVS became 
operational, they had never seen a Chair announce the result of 
a vote without waiting for the tally clerks to prepare a tally 
slip signifying that the voting system had been closed to 
further input.\42\
---------------------------------------------------------------------------
    \42\In his interview, Mr. Sullivan described the importance of the 
tally slip this way: ``Its main purpose is an assurance that the 
numbers written on it were put there after the system had been closed 
for further input and the numbers were static. It's probably the most 
important quality control device in the announcement of a vote. So to 
read a number off the wall, that's not a static number, that's a 
snapshot of that computer refresh cycle. And there might be other 
electrons on their way to the board. And to read a number from that 
board is liable to be contradicted the next time the computer 
refreshes.'' Mr. Sullivan also explained that Mr. McNulty's failure to 
await a tally slip was a departure from the best practice on 
announcement of a vote, but it was not a violation of the Rules of the 
House. (Sullivan interview, p. 58.)
---------------------------------------------------------------------------
    At 10:51:38 p.m., 8 seconds after the announcement, Ms. 
Gillibrand, a Democratic Member who had been visible in the 
well, approached the rostrum and began filling out a well card. 
A few seconds later, Mr. Space, a Democratic Member--who had 
been standing at the desk for more than a minute--submitted a 
well card, as did Ms. Gillibrand, both of whom changed their 
votes from ``aye'' to ``no.''
    Mr. McNerney, a Democratic Member, approached the rostrum 
and also began filling out a well card at 10:52:05 p.m., 35 
seconds after the announcement. At 10:52:35 p.m., Ms. Niland 
began announcing the changes earlier submitted by Ms. 
Gillibrand and Messrs. Space and McNerney. At the same time, 
Mr. Sullivan approached the Chair and began writing an 
explanatory statement, which was to include a final vote tally. 
Mr. Sullivan testified that he intended that this statement be 
considered the ``functional equivalent'' of a tally slip.\43\
---------------------------------------------------------------------------
    \43\Document Production of House Parliamentarian John Sullivan, 
Reflections on Roll Call 814 (received by Select Committee Jan. 4, 
2008).
---------------------------------------------------------------------------
The Aftermath
    In the minutes immediately following the Chair's 
announcement, there was a great deal of rostrum traffic. 
Members from both parties approached the Chair and the 
parliamentarians.
    At 10:54:37 p.m., approximately 3 minutes after the 
announcement, Mr. Boehner, the Minority Leader, entered the 
well with his hand raised, indicating his intent to cast a 
vote. At 10:54:50 p.m., Mr. Boehner submitted a red well change 
card, intending to change his vote from ``aye'' to ``no.'' 
Although unknown to Mr. Boehner for at least several days after 
this incident, it was later discovered that his well change 
card was never processed.
    At 10:54:57 p.m., Mr. Sullivan can be seen giving Mr. 
McNulty the statement that he had been preparing. When Mr. 
McNulty appeared to move toward the microphone to read from the 
paper, Mr. Sullivan asked him to refrain until they can ``make 
sure this is sorted out.''
    At approximately 10:55 p.m., Mr. Hoyer submitted a red well 
change card. This card was never processed because it 
duplicated his existing vote against the motion already 
recorded in the EVS.\45\
---------------------------------------------------------------------------
    \45\Mr. Sullivan explained that ``Technically, the duplicate should 
have been processed as well, in which case the reading clerk, rather 
than saying off aye on no, Mr. Hoyer, would say Mr. Hoyer voted no, 
meaning this is a duplicate, we already have that in the system.'' 
(Sullivan interview, p. 387.)
---------------------------------------------------------------------------
    Approximately 20 seconds later, after being called over by 
the seated tally clerk, De'Andre Anderson--who appeared to be 
experiencing some difficulty--Mr. Sullivan can audibly be heard 
saying, ``We've got big problems, bigger than that.''
    At approximately 10:56 p.m., Mr. McNulty banged the gavel 
and recognized Mr. Hoyer, who made a unanimous consent request 
to ``vacate the vote we have just taken.'' Multiple objections 
were heard coming from the Republican side of the chamber.
    Hearing those objections, Mr. McNulty began conferring with 
Messrs. Wickham and Lauer, while Mr. Sullivan began conferring 
with other Members and staff. In particular, Mr. Sullivan 
expressed his hope to Mr. Boehner's floor staff, Jay Pierson 
and Jo Marie St. Martin, that objections would be withdrawn and 
that Mr. Hoyer could attempt another unanimous consent request 
to vacate because, in Mr. Sullivan's opinion, this was the best 
option ``to achieve justice.''\46\
---------------------------------------------------------------------------
    \46\Sullivan interview, p. 367.
---------------------------------------------------------------------------
    At 10:57:38 p.m., Mr. Hoyer embarked on a second option. 
Mr. McNulty recognized the Majority Leader, who moved to 
``reconsider the vote by which the previous vote was taken.''
    Mr. McNulty stated that he first had to call the vote 
before the motion to reconsider would be in order. Reading from 
the statement prepared by Mr. Sullivan, Mr. McNulty began his 
announcement by trying to explain the events that had 
transpired, while being repeatedly interrupted by shouts from 
the chamber.\47\
---------------------------------------------------------------------------
    \47\At 10:58:02 the video shows Mr. McNulty stating: ``The Chair 
prematurely called the vote at 214-214 * * * while there were still 
votes being entered. After all of the cards were added, the final vote 
was 212 to 216 nay.'' The transcript in the Congressional Record for 
that day differs and better reflects the statement written by Mr. 
Sullivan for the Chair: ``The Chair prematurely announced that the 
motion was rejected on a tie vote of 214-214. After the cards already 
submitted in the well were entered in the computer, the result was the 
same, albeit by a different tally, 212-216. The motion is not 
adopted.'' (126 Cong. Rec. H9650 (daily ed. Aug. 2, 2007, vol. 2.))
---------------------------------------------------------------------------
    At the conclusion of Mr. McNulty's statement, he recognized 
the Majority Leader, who moved to reconsider the vote. At 
approximately 10:59 p.m., the Chair put the question on the 
motion to reconsider. Mr. Boehner requested a recorded vote, 
which was ordered at 10:59:20 p.m.
An EVS Failure Adds to the Confusion
    It first became evident that there was a problem with the 
EVS at 10:54:57 p.m., when Mr. Sullivan can be heard advising 
the Chair that there was a problem with the computer. Mr. 
Anderson testified that he was unable to terminate the 
vote.\48\ Mr. Hanrahan can be seen leaning over the second tier 
of the rostrum consulting with Mr. Anderson and looking at the 
screen of the EVS terminal at numerous points in the video. At 
10:59:31 p.m., Mr. Wickham can be seen consulting with the 
tally clerks and Ed Sorenson, the Deputy Clerk with 
responsibility for technical operations--and the senior member 
of the Clerk's staff on duty that evening.
---------------------------------------------------------------------------
    \48\Anderson interview, p. 135.
---------------------------------------------------------------------------
    According to a presentation subsequently prepared by the 
Clerk's office, at that point the EVS vote on the original 
motion to recommit was not yet terminated, meaning that the 
seated tally clerk had not been able to complete all of the 
steps required to terminate the vote, release the summary 
boards, and move on to the next vote. That document states that 
``because the termination process was reversed for additional 
well votes, EVS would not terminate normally.''\49\ In his 
interview, Mr. Sorenson stated that he recognized that there 
was a problem with the computer and realized that the House 
could not move on to the vote on the motion to reconsider until 
it was resolved.\50\
---------------------------------------------------------------------------
    \49\Draft Memorandum. from Lorraine Miller, Clerk of the House to 
Comm. on House Admin. (Sept. 2007) CLERK 467-494.
    \50\Select Committee Interview of Ed Sorenson. Feb. 4, 2008, p. 47. 
(Hereinafter ``Sorenson interview''.)
---------------------------------------------------------------------------
    At 11:00:26 p.m., Mr. Boehner moved to adjourn and Mr. 
McNulty informed the Members of the problem with the computer: 
``I would advise the Minority Leader that that motion is not 
proper at this time because we are in a * * * vote on the 
motion to reconsider. The only reason it is not on the board is 
that the machine is down.''\51\
---------------------------------------------------------------------------
    \51\Again, the statement which appeared in the Congressional Record 
was different than the Chair's utterance: ``The Chair would advise the 
minority leader that this motion is not proper at this time because we 
are in a vote on the motion to reconsider the vote on the motion to 
recommit with the previous question ordered to final passage without 
other intervening motion. The only reason it is not on the board is 
that the machine is down.'' (126 Cong. Rec. H9651 (daily ed., Aug. 2, 
2007, vol. 2).)
---------------------------------------------------------------------------
    Messrs. Sullivan, Wickham, and Sorenson discussed the 
options for moving forward. A decision was ultimately made to 
``abort'' the vote (essentially ``undoing'' the vote and, for 
purposes of the EVS, making it as if the vote had never 
occurred). Both Mr. Sullivan and Mr. Sorenson testified that 
Mr. Sorenson was certain that aborting the vote would not 
result in data being lost in the long-term; however, it would 
be lost in the immediate term.\52\ It would take several hours 
to recapture the results from the main computer for depiction 
in the Journal and the Congressional Record.
---------------------------------------------------------------------------
    \52\Sullivan interview, p. 391, and Sorenson interview, p. 54.
---------------------------------------------------------------------------
    At 11:02:30 p.m., the vote was aborted, the data from that 
vote became unavailable on the EVS, and the motion to 
reconsider showed up on the EVS terminals, including those on 
both the Republican and Democratic sides of the chamber as Roll 
Call 814.\53\
---------------------------------------------------------------------------
    \53\Over the course of the night of August 2 and the early morning 
hours of August 3, the Clerk's personnel reconstructed Roll Call 814 by 
using data stored in various files on the EVS. Once the vote was 
reconstructed, the subsequent votes were renumbered as Roll Call 815 
and 816.
---------------------------------------------------------------------------
    Finally, at approximately 11:03 p.m., most Republican 
Members walked out of the chamber in protest. The next day, on 
August 3, Mr. McNulty apologized to the House for his role in 
the controversy.

                         Findings and Analysis

    The evidence gathered by the Select Committee during the 
course of its investigation shows that Roll Call 814 was, in 
many ways, the perfect storm: a long and contentious week; a 
close vote on a politically sensitive issue; the lateness of 
the hour; urging from the Majority Leader and other Members to 
close the vote; an attempt by the Chair to uphold or enforce 
clause 2(a) of rule XX; and a breakdown of the EVS. This 
unfortunate combination of factors effectively undermined the 
confidence of many Members in the outcome of Roll Call 814, and 
also raised their concerns about the integrity of the voting 
process on that occasion. It is the Select Committee's hope 
that the findings and recommendations set forth in the 
subsequent pages will help to prevent such a situation from 
reoccurring.

                               finding 1

          As is the traditional role of the Majority Leader, 
        Mr. Hoyer urged the Chair to close the vote--after time 
        for voting had expired and with no apparent voting 
        activity in the well--when the majority was prevailing. 
        Neither the Chair nor the rostrum staff was pressured 
        to circumvent the rules and practices of the House. 
        Nevertheless, the Chair's premature announcement of the 
        vote led to a series of cascading errors on the 
        rostrum, including the failure to process well cards 
        submitted by the Minority and Majority Leaders and a 
        failure in the EVS, all of which further undermined 
        many Members' confidence in the integrity of the vote.

    The Select Committee recognizes that the House is a 
political body in which the Majority Leader and other leaders 
(past, current, and yet to come) make every reasonable attempt 
to ensure that their side will prevail during a close vote.
    Roll Call 814 was just such a close vote. It was a vote Mr. 
Hoyer wanted to win, and he attempted to communicate to Mr. 
McNulty his desire that the vote be closed.\54\ Mr. Hoyer 
acknowledged making such statements and admitted that it was 
``certainly possible'' that he helped create an atmosphere 
where Mr. McNulty felt pressure to close the vote sooner than 
he might have otherwise.\55\ For his part, Mr. McNulty 
testified that he neither heard those comments nor felt 
pressure.\56\
---------------------------------------------------------------------------
    \54\``I was saying we need to shut down the vote * * * Clearly I 
wanted the vote to terminate at the time that the votes were in * * * 
but it was not a conversation [with Mr. McNulty], because I was never 
proximate to him * * * I never had a conversation with * * * Mr. 
McNulty.'' (Hoyer interview, p. 510.)
    \55\Q: ``Is it possible in your mind that your demeanor that night 
may have unintentionally created an environment of more pressure on 
[Mr. McNulty] to close the vote? I mean, do you [believe] that you may 
have inadvertently created an environment where he felt more pressure 
to drop the gavel than he would have otherwise?'' A: ``Certainly 
possible.'' (Rep. Pence & Rep. Hoyer, Hoyer interview, p. 535.).
    \56\Q: ``[F]or all the questions about whether he [Mr. Hoyer] 
pressured you or influenced you, I don't even see his physical 
presence. Do you agree with that?'' A: ``I don't recall his physical 
presence, and I know that he was never successful in communicating 
anything to me.'' (McNulty interview.)
---------------------------------------------------------------------------
    Mr. McNulty aborted his first attempt to call the vote 
because, in complying with the Speaker's opening day policy, he 
noticed Members in the well changing their votes.\57\ Mr. Hoyer 
believed, albeit mistakenly, that the Parliamentarian had 
intervened when the well was empty to prevent the Chair from 
closing the vote.\58\ As a result, Mr. Hoyer approached Mr. 
Sullivan, for approximately 2 seconds on the side of the 
rostrum, and stated in an animated manner that ``we control 
this House, not the Parliamentarians.''
---------------------------------------------------------------------------
    \57\``I stopped because somebody was in the House with a card, 
attempting to change the vote, and then others followed.'' (McNulty 
interview, p. 447).
    \58\``Mr. McNulty called the vote [at 214 yeas and 214 nays] [and] 
I thought he was acting within his discretion as the Speaker. From my 
perception * * * the other parliamentarian [Ethan Lauer] appeared to me 
to be saying to Mr. McNulty--again, I could not hear anything, so I'm 
telling you what appeared to me to be the case--appeared to be saying 
to Mr. McNulty he could not do that.'' (Hoyer interview, p. 503.)
---------------------------------------------------------------------------
    Some of the rostrum staff testified that Mr. McNulty's 
second premature announcement of the vote (which included an 
unequivocal statement of result) left them ``stunned,'' or 
words to that effect.\59\ The Select Committee found that the 
announcement created a sense of confusion on the rostrum that 
evening, particularly among the professional staff. Although 
there was no intent to interfere with the execution of duties 
of the rostrum staff, the confusion contributed to the 
technical mistakes made on the rostrum that evening.
---------------------------------------------------------------------------
    \59\``I was entering Mr. Mario Diaz-Balart's vote into the system. 
And as I was doing that, the Chair * * * announced the vote and pounded 
the gavel. I was stunned that, first of all, the process had been 
bypassed. I basically just continued to do my job as Seated Tally 
Clerk.'' (Anderson interview, p. 133.); ``As soon as the Chair made the 
announcement that night and banged that gavel, our protocol--we were 
thrown off, we were gone, we were done. We were off track and we were 
in no man's land at that point.'' (Hanrahan interview, p. 160.)
---------------------------------------------------------------------------
    All Members are responsible for creating an atmosphere of 
civility and decorum. The Select Committee reminds all Members 
that they must be mindful that rostrum staff is executing 
specific and sometimes urgent responsibilities on the rostrum 
and, therefore, they should gauge their need to interrupt 
rostrum staff accordingly.
    When the seated tally clerk attempted to close Roll Call 
814, there was a failure in the EVS. This failure further added 
to the confusion that night by preventing the clerks from 
following their normal procedures for releasing the system and 
starting the next vote. The problem was further exacerbated by 
the decision to abort the vote, causing the loss of EVS data 
related to Roll Call 814 until it could be recovered the next 
day. Neither the Chair, the Leadership, nor the Leadership 
staff, participated in the decision to abort the vote.
    The clerks also failed to process two well changes 
submitted while the vote was still open. The first unprocessed 
card, from Mr. Boehner, changed his vote from an ``aye'' to a 
``no''--a procedural necessity if he were to offer a motion to 
reconsider. The second, cast by Mr. Hoyer, duplicated his 
electronic vote and therefore would not have affected the final 
tally but should have nonetheless been announced by the reading 
clerk.\60\
---------------------------------------------------------------------------
    \60\See footnote no. 45.
---------------------------------------------------------------------------
    There may be a disagreement about what should be the final 
vote tally, but one fact is indisputable: the vote tally of 212 
yeas and 216 nays that was finally announced is incorrect. It 
is either 215 yeas and 213 nays, which would have reflected the 
tally at the time the Chair prematurely announced the statement 
of result, or 211 yeas and 217 nays, which would have reflected 
the tally had Mr. Boehner's well card been processed.
    On this occasion, the Select Committee acknowledges the 
work of the rostrum staff under difficult circumstances during 
a vote that was complicated by many factors, significantly the 
Chair's premature announcement.

                               finding 2

          The Chair failed to observe the customary procedures 
        and protocols for closing a vote, resulting in an 
        inaccurate announcement and unintentionally raising 
        concerns regarding the legitimacy of that vote.

    Mr. McNulty twice failed to await a tally slip prior to 
attempting to announce the result of Roll Call 814. The first 
of those attempts was aborted by Mr. McNulty because additional 
Members entered the well with the intention of casting votes; 
the second attempt was completed when Mr. McNulty recited an 
unequivocal statement of result (``the motion is not agreed 
to''). However, this announcement was premature and inaccurate. 
Moreover, the Parliamentarian testified that the premature 
announcement was immediately impeached by the uptick on the 
board and ``could not be afforded legitimacy.''
    The protocol employed by the Clerk, the ultimate outcome of 
which is the tally slip, is designed to reinforce the 
legitimacy of the vote and ensure that the Chair is able to 
report an accurate result to the House.
    Although Mr. McNulty is an experienced and well-regarded 
presiding officer,\61\ he was not experienced in administering 
the new provision of clause 2(a) of rule XX.\62\ Out of concern 
and confusion, he failed to follow the long-established 
procedures for closing a vote, unintentionally leading the 
House into uncharted territory, and thereby raising concerns 
about the legitimacy of the vote.\63\
---------------------------------------------------------------------------
    \61\``I don't know that (Mr. Hoyer and I) have had detailed 
discussion about [Roll Call 814], except [one] * * * actually about Mr. 
McNulty. Mr. Hoyer was sharing with me Mr. McNulty's concerns about how 
his position could be perceived here. And I reached out and talked to 
[Mr. McNulty] after that and told him that I didn't know anybody on 
either side of the House that thought that he had intentionally done 
anything that was unethical or that he should spend undue time worrying 
about this. It's just something we needed to work out and not see 
repeated in the future. * * * [I said that] sometimes you get caught in 
a situation that things happen that you don't intend to happen, and 
that he should feel confident in his respect that the Members have for 
him personally.'' (Select Committee Interview of the Hon. Roy Blunt, 
Apr. 8, 2008, p. 410.); ``I think, as I have told you privately on the 
floor, I hold you in high regard. I admire you for your sense of 
professionalism and for your fairness. Let me say I think that that is 
why I and the other members of this committee on the minority side are 
struggling so much with this, with the facts of this incident. This was 
not a Mike McNulty moment. It was not. I want to say that while I am 
complimenting you. (Pence, McNulty interview); ``I accept the regrets 
offered by my friend from New York. Having been in the Chair myself, I 
can understand how it can happen. He and I are friends. He is, in fact, 
one of the fairest Members who could ever be in the Chair.'' (Rep. 
Boehner, 127 Cong. Rec. H9661 (daily ed., Aug. 3, 2007, vol. 1). ``I 
believe Mr. McNulty is an extraordinarily honest person of high 
integrity * * * He's a wonderful human being.'' (Hoyer interview).
    \62\``Q: From the time when you were in the Chair as Speaker Pro 
Tem in the old majority and now when you had begun to preside or did 
begin to preside in the new majority, aside from clause 2(a) that we've 
been talking about, did you notice any other difference, in terms of 
were the rules different? Was presiding different? Was it handled any 
differently than you recall?
    ``A: Not that I can recall, Steve.
    ``Q: Pretty much, the votes were the same, they were called the 
same?
    ``A: The language was the same on calling the votes and so on. Of 
course, I've done it so many times through the years that those little 
cards that they give you? I mean, most of the time, I don't even need 
them.
    ``Q: Right. Do you recall any instance, either in the old majority 
or since you have presided beginning in 2007, when you called the vote 
without the benefit of a tally slip?
    ``A: No.
    ``Q: Okay. Would you--
    ``A: Prior to 2007, there was no clause 2(a) of rule XX.'' (McNulty 
Interview, p. 443).
    \63\``To summarize, I called this vote prematurely, and that action 
caused a measure of chaos, confusion, and anger on the House floor. The 
morning after the event, I publicly apologized on the House floor to 
all Members of the House of Representatives. I repeat that apology 
today.'' (United States. Congress. House. Michael R. McNulty, Statement 
for the Congressional Record. Hearing of the Select Committee to 
Investigate the Voting Irregularities of August 2, 2007. Investigate 
Hearings Regarding Roll Call 814. (May 13, 2008, p. 428))
---------------------------------------------------------------------------

                               finding 3

          The new sentence of clause 2(a) of rule XX (creating 
        the rule against holding a vote open for the sole 
        purpose of reversing the outcome), added at the 
        beginning of this Congress, was a major contributing 
        factor to the perfect storm of events of August 2, 
        2007. As evidenced by those events, this sentence is 
        unworkable in practice.

    With one exception, the Chair has complete discretion to 
close votes at any point after the minimum period for voting 
guaranteed under rule XX has expired. The Parliamentarian is 
merely an advisor to the Chair and cannot close votes. The 
exception to the Chair's complete discretion to close a vote is 
the new sentence of clause 2(a) of rule XX. Under this 
sentence, the Chair may not hold open a vote with the sole 
intent of reversing the outcome. The application of this 
sentence, therefore, pivots on the intent of the Chair.
    The Chair, Mr. McNulty, testified that he believed that 
holding the vote open after Mr. Mario Diaz-Balart changed his 
vote would subject him to criticism that he was violating the 
new sentence of clause 2(a).\64\ This overriding concern 
prompted Mr. McNulty to announce the result immediately after 
Mr. Mario Diaz-Balart cast his vote, breaking the long-standing 
practice of the Chair of announcing a vote from a tally 
slip.\65\ Although the result of the vote at this time was 215 
yeas and 213 nays, Mr. McNulty, looking at the display board 
over the east door of the chamber, understood the result to be 
214 yeas and 214 nays, and that is the result that he 
announced.\66\
---------------------------------------------------------------------------
    \64\``When I announced the vote at 214-214 * * * I did not do so at 
the direction of any other person or persons. I did so on my own, in an 
attempt to enforce clause 2(a) of rule XX, which states that recorded 
vote by electronic device shall not be held open for the sole purpose 
of changing the outcome. My attempt to enforce clause 2(a) of rule XX 
was the reason for not following the usual, but not required, procedure 
of waiting for the written slip from the Tally Clerk.'' (Select 
Committee Hearing, May 13, 2008, p. 429).
    \65\``It was not so much a conscious decision not to have the tally 
sheet [sic]. I really wasn't thinking of that at the time. I was 
fixated on enforcing, or at least acting in such a manner that there 
would not be the appearance of me holding the vote open for the purpose 
of changing the outcome.'' (Id.)
    \66\``[The failure to wait for a tally slip] was clearly a mistake 
on my part * * * because it now seems apparent that the vote change 
which was announced by the Clerk just prior to my calling the vote at 
214-214 had not yet been recorded by the computer, thus the discrepancy 
which ensued almost immediately after.'' (Id.)
---------------------------------------------------------------------------
    Mr. McNulty's testimony that he prematurely announced the 
vote immediately after Mr. Diaz-Balart cast his vote because he 
was concerned about violating clause 2(a) raises the question 
of whether Mr. McNulty violated clause 2(a) when he 
subsequently allowed the vote to be held open after his 
premature announcement for approximately 7 additional minutes 
while Members changed their votes (with the result changing to 
212 yeas and 216 nays), thereby reversing the outcome. However, 
some believe that a finding of a violation of clause 2(a) does 
not appear warranted because it would have to be based on an 
interpretation of clause 2(a) as capable of being violated even 
without the intent required by the new sentence of clause 2(a), 
given that Mr. McNulty did not intend to hold the vote open for 
the sole purpose of reversing the outcome. Mr. McNulty 
testified that his nearly instantaneous realization that his 
premature announcement was inaccurate caused his thinking to 
shift from clause 2(a) to one of permitting the Parliamentarian 
time to clarify the unprecedented situation caused by his 
mistaken announcement.\67\ Neither Mr. McNulty nor the 
Parliamentarians had previously encountered or anticipated this 
error, and everyone was, as Mr. Sullivan testified, ``in 
uncharted territory.''\68\
---------------------------------------------------------------------------
    \67\``[A]fter I looked up at the board and saw the different total, 
I knew that I had committed an error. And I first started in the Chair 
under Bill Brown when he was the Parliamentarian, and I remember him 
spending a lot of time with me when I was in the Chair and things were 
quiet and him tutoring me about things. And one of the things that I 
remembered that he said that popped into my mind at that very moment 
was, when in doubt, do what the Parliamentarian says. And I knew that I 
had committed an error that had caused this chaos in the House. And I 
made the determination at that moment that I wasn't going to make any 
other ruling on that vote without the concurrence of the 
Parliamentarian. And what John said to me was, I am going to write out 
a statement for you to read. And I decided to wait until that was 
completed and to read it.'' (Id., p. 439)
    \68\``What was uncharted about it to me was that it was an 
unequivocal statement of a result by the presiding officer * * * it was 
one that just by the surrounding circumstances could not be accorded 
legitimacy. I believe, now I'm not sure about this, but I believe the 
minute he uttered that [result] there was an uptick on the board * * * 
which was a manifestation to me that there were still electrons flying 
around. And then I looked at the tally clerks and saw that they had 
still other cards to input. It wasn't just that the last card had hit 
the board. There were several more cards to be done * * * And the board 
was not the result. The result was what the Chair announced. And those 
two differed at that point. The precedents that I'm aware of in this 
area that basically say if there is a mistake by human intervention, 
then you can, by unanimous consent, correct the mistake. They're 
limited to cases in which the result would not change. I'm not sure 
what the rationale for that was, but the basic rule is that, if Members 
are recorded incorrectly because of somebody else's human error and it 
would not change the result on the pending question, then even after 
the fact those Members may be recorded correctly. * * * those 
precedents largely arose with calls of the roll before the electronic 
voting system. The precedents of the electronic voting system are based 
on the idea that the machine is infallible * * * there is no human 
intervention. If a Member pushes the wrong button, that's the way the 
ball bounces. Here the human intervention that put us in uncharted 
territory was the presiding officer's premature announcement of the 
result. So it was a case not previously solved.'' (Sullivan interview, 
p. 361.)
---------------------------------------------------------------------------
    There still are open questions regarding the interpretation 
of this sentence of clause 2(a) as applied to this case. In 
particular, questions remain as to whether the intent 
sufficient to trigger the rule occurred at Mr. McNulty's 
penultimate announcement of the result or whether his later 
decision to hold the vote open was sufficient to change the 
analysis. The Parliamentarian devised a parliamentary solution 
to the quagmire caused by the premature announcement which was 
executed by Mr. McNulty. This solution required the Chair to 
hold the vote open: (1) to allow the Clerk to process well 
votes that were turned in seconds after the premature 
announcement;\69\ (2) to allow the Parliamentarian to draft a 
statement for the Chair to read that coupled an acknowledgement 
of error with an ultimate announcement of the result (212 yeas 
and 216 nays); (3) to allow the Parliamentarian to inform the 
Majority Leader, the Chair, and others, including Members and 
staff from the Minority, about the solution; and (4) to allow 
the Parliamentarian to discuss with the Majority Leader 
parliamentary options for retaking a vote that the Majority 
Leader believed ``could not stand.''\70\
---------------------------------------------------------------------------
    \69\By the time Mr. Sullivan focused on the tally clerk, those 
cards were being processed. As he testified, Mr. Sullivan did not know 
precisely when those cards were submitted (before or after the 
announcement) or whether the EVS had been closed to further input. 
``[U]nder the circumstances, it [the unequivocal statement of the 
result by the Chair] was impeached by the surrounding circumstances, 
immediately contradicted by an uptick on the scoreboard. And when I 
gathered myself, I saw red and green cards sitting in front of the 
Tally Clerk * * * (Sullivan Interview, p. 362). ``The uncharted 
territory here was the announcement of a result before the Tally Clerks 
had done their shut down from the periphery. The voting stations may 
well have still been open. A 429th vote could have come in from the 
back rail.'' (Sullivan Interview, p. 366).
    \70\Mr. Sullivan's explanation regarding his statement for the 
Chair: ``Part of the time I spent explaining what I was writing down 
for him; explaining that we had an unsustainable ostensible 
announcement of a result and we needed to apprise the House that it 
could not be accorded legitimacy; and that the system, when allowed to 
settle, produced different numbers, albeit no change in the result, and 
that would be the result, but it had to be preceded by at least some 
acknowledgement of error. [T]hen * * * I told him I now intend to go 
down to the well and see what could be worked out in the way of 
throwing oil on the water. * * * My conversation with Mr. Hoyer was my 
advice to him that if he wanted to try to do something here, it would 
be unanimous consent to vacate the conduct of that vote. And I believe 
that I was trying to contrast the utility of that move with the motion 
to reconsider. That it was superior, both in terms of its tendency to 
smooth things down and in terms of its legislative economy * * * He was 
in listen mode at that point, I believe. I don't think he responded. 
[At 23:57:08] on the [TV] screen I see myself, Jay Pierson and Lynn 
Westmoreland. And standing off to the side is Jo-Marie St. Martin, who 
is Mr. Boehner's counsel * * * and we were joined at some point by Mr. 
Hobson. [The nature of this conversation is that] Mr. Hoyer asked to 
vacate, objection was heard, and I was just consulting with Jay about 
whether they had a better solution in mind. That in terms of finishing 
the business and letting Members go, and in terms of trying to achieve 
justice on the motion to recommit, I could see no more immediate or 
suitable solution than a do-over, as it were. And so I was just making 
sure that such an option wasn't going to be foreclosed just by a 
visceral objection, then maybe, maybe people could see the benefit. So 
I was talking with Jay on those bases, I believe. [The minority staff 
did not offer] any particular procedural gambits. Jay may have apprised 
me of the level of outrage, how unthinkable it might be that they could 
achieve unanimous consent to vacate the proceedings.'' (Sullivan 
interview, p. 367.)
---------------------------------------------------------------------------
    The Chair's inclusion of an unequivocal statement of result 
in the Chair's second premature announcement raises the 
question of whether an equally reasonable alternative 
parliamentary solution could have required Mr. McNulty to 
reannounce the vote as 215 yeas and 213 nays, which was the 
accurate vote at the exact point in time of the premature 
announcement and would reflect the Chair's intent to close the 
vote after Mr. Mario Diaz-Balart had voted.
    Any evaluation of this approach is complicated by the role 
clause 2(a) played in Mr. McNulty's premature announcement and 
the consequent necessity to consider his purpose in allowing 
Members in the well to change their votes seconds thereafter. 
Clause 2(a) potentially conflicts with the Speaker's announced 
policy that Members in the well should be afforded the 
opportunity to vote.
    In this situation, the Select Committee finds that this 
approach also would have been reasonable but will not opine on 
whether this approach would have been preferable to the 
Parliamentarian's solution, which the Select Committee finds 
was not an unreasonable outcome under the circumstances.\71\
---------------------------------------------------------------------------
    \71\Mr. Sullivan supported his advice to the Chair this way: ``What 
was wrong with the announcement was not the particular numbers it 
contained, but that it contained unsettled numbers. And, in my 
judgment, to just introduce a different pair of unsettled numbers would 
not solve the problem.'' Select Committee Hearing, May 13, 2008.
---------------------------------------------------------------------------

                            Recommendations

    In light of the findings detailed in this report, the 
Select Committee recommends the following:

                       CLAUSE OF 2(A) OF RULE XX

Deleting the new sentence of 2(a)
    First, the Select Committee recommends the deletion of the 
sentence in clause 2(a) of rule XX that states: ``A record vote 
by electronic device shall not be held open for the sole 
purpose of reversing the outcome of such vote.'' [emphasis 
added] The Chairman of the Select Committee described the rule 
in his opening remarks at the May 13 hearing of the Select 
Committee this way: It is ``a rule that was enacted with a 
noble intent to curb other perceived abuses, but a rule that 
is, at best, difficult to enforce, and at worst, the catalyst 
for the raw anger that we observed on August 2nd.''\72\
---------------------------------------------------------------------------
    \72\Opening Statement of Chairman Delahunt, Select Committee 
Hearing, May 13, 2008.
---------------------------------------------------------------------------
    The Chairman's concern that the rule is difficult to 
enforce is supported by the body of precedent that has 
developed under the two-year operation of this rule. Under the 
rule ``the Chair is constrained to differentiate between 
activity toward the establishment of an outcome on the one hand 
and activity that might have as its purpose the reversal of an 
already established outcome on the other.''\73\ In other words, 
an observer of the Chair's conduct of a record vote cannot 
discern, for purposes of enforcement of the rule, whether an 
activity is motivated by an intention to reverse the outcome. 
Furthermore, it is not enough that the activity be motivated by 
an intention to reverse an established outcome because the rule 
``focuses very clearly on exclusivity of purpose.''\74\ As the 
rules and practices of the House contemplate, however, a 
presiding officer could be motivated by multiple factors.\75\ 
For example, the Chair could be intent on reversing an outcome 
while also intent on upholding the Speaker's opening day policy 
to ensure that all Members in the well desiring to vote have 
the opportunity.\76\
---------------------------------------------------------------------------
    \73\House Rules and Manual p. 808; see also Hulshof, Select 
Committee Hearing, Oct. 25, 2007, p. 34.
    \74\Davis, Select Committee Hearing, Oct. 25, 2007, p. 19.
    \75\Id.
    \76\Speaker Pelosi, Jan. 5, 2007, p. --, (Manual  1014).
---------------------------------------------------------------------------
    Former Parliamentarian Charles Johnson described the 
dilemma this way: ``Others can claim to know because they have 
seen pressures brought to bear externally, but it is the 
Chair's intent as discerned by the Chair at that moment in time 
as the vote is being kept open'' that is dispositive.\77\ Even 
though the rule is entirely focused on the exclusive motivation 
of the Chair, Mr. Johnson stated that it would be inappropriate 
to require the Chair to declare a reason for delaying a 
vote.\78\ Without such a declaration, it is impossible for the 
House to determine whether the Chair had the requisite intent 
necessary to find a violation of the rule.
---------------------------------------------------------------------------
    \77\Select Committee Hearing, Oct. 25, 2007, p. 19.
    \78\Id, p. 20.
---------------------------------------------------------------------------
    In addition, as held by the Chair on May 8, 2008 (sustained 
on appeal), the rule does not establish a point of order having 
an immediate procedural remedy. The rule instead sets a 
standard of behavior for presiding officers (and one involving 
mens rea, at that) enforceable only on a collateral basis, as 
by a question of the privileges of the House.\79\ The dignity 
and integrity of the proceedings of the House are dependent 
upon the dignity and integrity of its Speaker and those she 
appoints to serve in the Chair. The Chair's conduct of a vote 
was within the purview of rule IX before the adoption of this 
rule, and any perceived misconduct on the part of the Chair 
will remain the subject of a question of the privileges of the 
House if the Select Committee's recommendation is adopted.\80\
---------------------------------------------------------------------------
    \79\76 Cong. Rec. H3193 (daily ed. May 8, 2008).
    \80\See Johnson, Select Committee Hearing, Oct. 25, 2007, pp. 18, 
20. For example, a resolution alleging abuse of the customs and 
practices of the House in holding a vote open for 3 hours was held to 
be just such a question of privilege under rule IX (Manual  704).
---------------------------------------------------------------------------
    Furthermore, the Select Committee does not believe that 
striking the sentence in question from the rule reduces the 
standard of conduct for the Chair. Indeed, Mr. Johnson stated 
that the first and second clauses of the Code of Conduct (rule 
XXIII)--requiring conduct in a manner that reflects creditably 
on the House and requiring adherence to the spirit and the 
letter of the rules--apply to the conduct of the Chair. In 
particular, in Mr. Johnson's view, the reference in rule XXIII 
to the spirit of the rules ``speaks volumes.''\81\
---------------------------------------------------------------------------
    \81\Select Committee Hearing, Oct. 25, 2007, pp. 41-42.
---------------------------------------------------------------------------
    In that vein, the Select Committee points to the principles 
that regulate the duties of the Speaker as articulated by 
Speaker Clay when he took the Chair on December 1, 1823. On 
that occasion, he described the principles as follows: ``They 
enjoin promptitude and impartiality in deciding the various 
questions of order as they arise; firmness and dignity in his 
deportment toward the House'' and ``carefully guarding the 
preservation of the permanent laws and rules of the House from 
being sacrificed to temporary passions, prejudices, or 
interests.''\82\ Those principles will remain intact if the 
House chooses to adopt the Select Committee's recommendation.
---------------------------------------------------------------------------
    \82\Asher C. Hinds, Hinds' Precedents,  1307, vol. 2.
---------------------------------------------------------------------------
Revised rule
    In order for clause 2(a) of rule XX to reflect this change, 
the Select Committee recommends that the clause be amended to 
read as follows:

          2.(a) Unless the Speaker directs otherwise, the Clerk 
        shall conduct a record vote or quorum call by 
        electronic device. With respect to any such record vote 
        or quorum call 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. 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.

    This change strikes the new sentence added to the rule at 
the beginning of the 110th Congress.

                             best practices

    The Select Committee recommends a revision of certain 
practices of the House that govern voting by electronic device.
Formalization of policy to ensure an accurate vote total
    As the Select Committee discussed previously, the Chair's 
inaccurate announcement raised concerns regarding the 
legitimacy of Roll Call 814. Under current practice, the Clerk 
utilizes the tally slip as the mechanism to indicate to the 
Chair that the vote tally is accurate at that point in time.
    From the earliest moments of the Select Committee's 
investigation, the importance of the tally slip was stressed by 
the professional staff.\83\ Mr. Sullivan described the tally 
slip this way: ``its main purpose is an assurance that the 
numbers written on it were put there after the system had been 
closed for further input and the numbers were static. It's 
probably the most important quality control device in the 
announcement of a vote.''\84\
---------------------------------------------------------------------------
    \83\See Select Committee Hearing, Sep. 27, 2007, pp. 19-21.
    \84\Sullivan interview.
---------------------------------------------------------------------------
    The importance of the tally slip was amplified by Mr. 
Sullivan's predecessor, Mr. Johnson, in another early hearing 
of the Select Committee: ``there [is] no other proper 
alternative to the announcement of the numbers and the 
announcement of the result'' by the Chair other than from a 
tally slip, which represents a vote tally that is the product 
of a system that has been closed to further input and is thus 
accurate at that point in time.\85\ Mr. McNulty himself 
admitted that the failure to await that slip resulted in an 
inaccurate announcement, and caused ``chaos in the House.''\86\
---------------------------------------------------------------------------
    \85\Select Committee Hearing, Oct. 25, 2007, p. 25.
    \86\Select Committee Hearing, May 13, 2008, p. 42.
---------------------------------------------------------------------------
    As clause 2(a) of rule XX directs the Clerk to conduct a 
vote by electronic device, the tally slip is the mechanism by 
which the Clerk transmits the tally when the presiding officer 
closes a vote. It also serves as a signal to the Chair that the 
numbers on that paper represent the true and correct tally at 
the time the vote was closed. The importance of the tally slip 
is not intrinsic to the slip itself, but rather the slip 
represents the ``de facto certification''\87\ provided by the 
Clerk that the result is reliable and accurate at that point in 
time.
---------------------------------------------------------------------------
    \87\Id., p. 24.
---------------------------------------------------------------------------
    The Select Committee does not believe that codifying the 
tally slip will best serve the House over the long-term. If the 
Clerk upgrades the EVS or there are other modifications to the 
House chamber, there may very well be another mechanism for 
transmitting this information to the Chair for the use in the 
ultimate announcement of the result. However, the process and 
protocol are of sufficient enough importance that their use 
should be formalized.
    Accordingly, the Select Committee recommends that the 
Speaker include an announcement on the opening day of each 
Congress regarding the importance of the Clerk's certification 
that the vote tally is accurate, and the Speaker's expectation 
that presiding officers will await that certification before 
making their ultimate announcement of result.
    The Speaker usually prints a series of policies in the 
Congressional Record at the beginning of each Congress, many of 
which provide standards for presiding officers.\88\ For 
instance, the sixth such policy for this Congress deals 
specifically with the conduct of votes by electronic device, 
and is the origin of the policy regarding allowing Members in 
the well to cast their votes before the ultimate announcement 
of the result.\89\ The Select Committee's suggested policy 
would be of similar character, as it also addresses the 
efficiency and accuracy of the voting process.
---------------------------------------------------------------------------
    \88\See, e.g., 153 Cong. Rec. 2 (daily ed. Jan. 8, 2007), pp. H59-
H61.
    \89\Id, p. H60.
---------------------------------------------------------------------------
    This approach has two benefits: first, because it is a 
policy of the Speaker and not a rule, it permits easy 
modification as circumstances in the House evolve; second, the 
formalization of this policy will buttress presiding officers 
in their efforts to ensure that the business of the House is 
conducted fairly and forthrightly, particularly when they face 
the normal range of pressures directed at presiding officers.
    The ultimate lesson of Roll Call 814 is that while some 
Members may not be happy with the outcome of a particular vote, 
they must have confidence in the result. The formalization of 
the policies and procedures regarding the tally slip in the 
form of an announcement by the Speaker will go a long way to 
ensuring that vote announcements are accurate, and thus instill 
confidence in the process.
Appearance of ``FINAL'' on display board
    The Clerk should remove the word ``FINAL'' from the display 
on the electronic summary board. The Clerk's display of the 
word has no legal or parliamentary significance. Furthermore, 
the display can be a source of confusion when the word is 
displayed before the vote is actually final.
Record of time for a vote
    The Clerk should keep a record of the total time an 
electronic vote was held open, which the Clerk will make 
available to Members upon request.
Efficiency of an electronic vote
    When the electronic voting system was instituted in 1973, 
it promised a swifter and more efficient voting process. 
Although certainly more swift than calling the roll, the full 
promise of swifter votes has not been realized. This is the 
case even though, over the years, the Leadership has repeatedly 
urged Members to vote in a more timely manner. It remains 
commonplace for 150 to 200 Members to be listed as ``not 
voting'' at the expiration of the minimum time guaranteed under 
the rules for a vote, especially on the first vote in a series 
of votes. It is also commonplace, at the end of a vote, for 
latecomers to straggle into the chamber one-by-one when the 
Chair is attempting to announce the result. It can take the 
Chair several minutes, and several attempted announcements, to 
close the vote, long after the minimum time for voting has 
expired. This troubling practice prolongs the vote and can 
cause confusion about its finality.
    Since the early 1990s, the Speaker has tried to support the 
Chair's efforts to conduct swifter votes by encouraging Members 
to be timely and refusing to honor requests from tardy Members 
who call from outside the chamber seeking to hold open a vote. 
Those efforts, however, were often accompanied by a renewed 
commitment to ensure that all Members standing in the well 
seeking to vote would be given the opportunity (in practice, 
this commitment has extended to any Member in the chamber 
seeking to vote, not just those standing in the well). As a 
result, there has been little improvement in the timeliness of 
Members' voting.
    When seeking to close votes, the Chair continues to 
confront the two competing principles that comprise the 
foundation of the Chair's conduct of a vote: enfranchisement on 
the one hand and efficiency (including swiftness, clarity, and 
finality) on the other. This dilemma for the Chair was a 
recurring theme among the witnesses interviewed during this 
investigation. Ensuring efficiency has become a difficult task 
for the Chair when the practice of the House--indeed its 
culture--preserves for Members the right to vote even when they 
are late. Often, in deciding when to leave their offices, 
committee meetings, or other obligations and proceed to the 
floor to cast a vote, Members look not to the clock but to the 
number of Members who have not yet voted, thereby perpetuating 
the practice of prolonged votes.
    Although enfranchisement is rightly a tenet of House voting 
practice, the responsibility to exercise a vote rests with the 
Member and not the Chair. Reducing the Chair's responsibility 
for ensuring that each Member has cast a vote would go a long 
way to return timeliness to the conduct of votes in the House. 
One way to accomplish that goal would be to eliminate the 
practice of voting during an electronic vote by a well card. 
The Chair would continue to exercise discretion as to when to 
begin closing the vote after the minimum time has elapsed. Once 
the Chair has established that Members present have finished 
voting (such as by querying whether all Members have voted), 
the Chair would declare that all voting machines shall close 
after a specified grace period of, for example, 2 minutes. 
Voting machines would automatically turn off after the 
expiration of this grace period and the vote would be closed.
    Removing manual voting by well card and the institution of 
an automatic voting-machine shut-off after a specified grace 
period would significantly reduce the Chair's responsibility 
for ensuring that tardy votes are counted. Hopefully, a new 
practice would evolve that fosters efficiency while preserving 
the Chair's ultimate discretion in closing a vote (by allowing 
the Chair to determine when the grace period will begin and 
end).
Well voting during an electronic vote
    At a minimum, the Speaker and the Clerk should examine the 
practice of voting during an electronic vote by a well card 
with a view towards minimizing the practice. Such examination 
may include proposals to amend the Rules of the House to 
restrict such practice. If well votes are taken during an 
electronic vote, the Clerk should process and announce all well 
votes or changes unless the Member specifically withdraws his 
or her well card prior to it being processed.
Majority-Minority Communication
    The Majority leadership should proactively consult with the 
Minority leadership (either at the Member or senior floor staff 
level) as soon as practicable upon learning of rostrum problems 
to avoid miscommunication and suspicion regarding the source 
and resolution of those problems.

                           increased training

    The Select Committee recommends that the House institute 
new training procedures regarding the rules, practices, and 
precedents for voting. Furthermore, even more seasoned Members 
should receive updated training as new rules are adopted or new 
best practices emerge.
For all newly elected Members
    The Clerk should conduct a walk-through of the EVS on the 
House floor. This should include an explanation of the 
responsibilities of each of the rostrum staff, the operation of 
the EVS, and the process of voting. The Committee on House 
Administration should include this in its curriculum of 
training for incoming Members.
For any Member newly appointed by the Speaker to preside
    The Speaker, the Parliamentarian, and the Clerk should 
conduct a training session that should consist of a walk-
through of the House floor as described for newly elected 
Members but with an emphasis on the rules, practices, and 
precedents governing the Chair's responsibilities during a 
vote, including the precedents requiring impartiality of the 
Chair.
    In addition, the Speaker and Minority Leader should 
facilitate a periodic roundtable discussion among Members from 
the Majority and Minority parties who have extensive experience 
in the Chair and Members with less experience but who may be 
interested in learning from more experienced presiding 
officers.
For any Member newly announced as elected to Majority Leader, Minority 
        Leader, Majority Whip, or Minority Whip, as well as any staff 
        newly assigned to those positions
    The Speaker, the Parliamentarian, and the Clerk should 
conduct a training session that should consist of a walk-
through as described for newly elected Members but with an 
emphasis on the rules, practices, and precedents governing the 
responsibilities of the Leadership during a vote.
                 PART II--SUMMARY OF ACTIVITIES

    Clause 1(d) of rule XI of the Rules of the House of 
Representatives requires each committee to submit to the House 
a report of that committee's legislative and oversight 
activities, summarizing the actions taken and recommendations 
made with respect to the committee's oversight plan. This part 
of the report shall constitute the Select Committee's report on 
its activities within the meaning of that rule.

                         Legislative Activities

    The Select Committee has no legislative jurisdiction.

                 The Select Committee's Oversight Plan

    The Select Committee's oversight plan was contained in its 
initial report (H. Rept. 110-355) and is reprinted below:

    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 limit 
the 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 
this custom 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.

                          Oversight Activities

    The Select Committee undertook those oversight activities 
described below in furtherance of its investigation.

                             briefings held

    On October 18, 2007, the Select Committee held a briefing 
on the floor of the House entitled ``Member Briefing on Voting 
in the House of Representatives--The Rostrum and the Electronic 
Voting System: a `Walkthrough' by the Clerk of the House 
Lorraine C. Miller.'' The Members of the Select Committee were 
briefed on the operation of the EVS by the Clerk, her staff, 
and the Parliamentarian and his staff.

                            interviews taken

    The Select Committee and its staff conducted 24 interviews 
between February 4 and April 16, 2008. Those interviews are 
listed in the table below.

                Interviews taken by the Select Committee
------------------------------------------------------------------------
           Individual Interviewed                Date(s) of Interview
------------------------------------------------------------------------
Frances Chippardi, Chief of Legislative       Feb. 4, 2008
 Operations, Office of the Clerk.
Ed Sorenson, Deputy Clerk, Office of the      Feb. 4, 2008
 Clerk.
Goldey Vansant, Chief of Legislative          Feb. 4, 2008
 Computing Systems, Office of the Clerk.
Allys Lasky, Assistant Journal Clerk........  Feb. 6, 2008
Mary Kevin Niland, Reading Clerk............  Feb. 6, 2008
Max Spitzer, Assistant Parliamentarian......  Feb. 6 & May 8, 2008
De'Andre Anderson, Assistant Tally Clerk....  Feb. 8, 2008
Kevin Hanrahan, Assistant Tally Clerk.......  Feb. 8, 2008
Ethan Lauer, Assistant Parliamentarian......  Feb. 14 & May 9, 2008
Tom Wickham, Deputy Parliamentarian.........  Feb. 14, 2008
George Kundanis, Deputy Chief of Staff,       Feb. 15, 2008
 Office of the Speaker.
Jay Pierson, Floor Assistant, Office of the   Feb. 15, 2008
 Republican Leader.
Rob Cogorno, Former Director of Floor         Feb. 21, 2008
 Operations, Office of the Majority Leader.
Jerry Hartz, Executive Floor Assistant,       Feb. 22, 2008
 Office of the Speaker.
Jo Marie St. Martin, General Counsel and      Feb. 22, 2008
 Director of Floor Operations, Office of the
 Republican Leader.
Catlin O'Neill, Floor Assistant, Office of    Feb. 25 & Apr. 16, 2008
 the Speaker.
John V. Sullivan, Parliamentarian...........  Feb. 27, 2008
Hon. Roy Blunt, Republican Whip.............  Apr. 8, 2008
Hon. John A. Boehner, Republican Leader.....  Apr. 9, 2008
Hon. Michael R. McNulty, Speaker pro tempore  Apr. 9, 2008
 during Roll Call 814.
Hon. Steny Hoyer, Majority Leader...........  Apr. 16, 2008
------------------------------------------------------------------------

                             hearings held

    On September 27, 2007, the Select Committee held a hearing 
entitled ``Voting in the House of Representatives.'' The Select 
Committee heard testimony from the Honorable Lorraine C. 
Miller, Clerk of the House of Representatives. She was 
accompanied by her counsel, Russell Gore, and other members of 
her staff.
    On October 25, 2007, the Select Committee held a hearing 
entitled ``Voting in the House of Representatives--Rules, 
Procedures, Precedents, Customs and Practice.'' The following 
individuals testified: Charles W. Johnson, former 
Parliamentarian of the House of Representatives and Mark 
O'Sullivan, Chief Tally Clerk of the House of Representatives.
    On May 13 and 14, 2008, the Select Committee held an 
investigative hearing on Roll Call 814. The following 
individuals testified: Mr. Kevin Hanrahan, Assistant Tally 
Clerk; The Honorable Michael R. McNulty, Speaker pro tempore 
during Roll Call 814; The Honorable Steny Hoyer, Majority 
Leader; Mr. John Sullivan, Parliamentarian; Mr. Ethan Lauer, 
Assistant Parliamentarian; Mr. Max Spitzer, Assistant 
Parliamentarian; Mr. Jerry Hartz, Executive Floor Assistant, 
Office of the Speaker; Ms. Catlin O'Neill, Floor Assistant, 
Office of the Speaker; and, Mr. Jay Pierson, Floor Assistant, 
Office of the Republican Leader.

                              Publications

    Organizational Meeting on Adoption of Committee Rules; 
Consideration of Interim Report; and Hearing on Voting in the 
House of Representatives. Meeting and Hearing. September 27, 
2007. PRINTED.
    Interim Report of the Select Committee to Investigate the 
Voting Irregularities of August 2, 2007. Report. September 27, 
2007. PRINTED, H. Rept. 110-355.
    Member Briefing on Voting in the House of Representatives--
The Rostrum and the Electronic Voting System: A ``Walkthrough'' 
by the Clerk of the House Lorraine C. Miller. Briefing. October 
18, 2007. PRINTED.
    Voting in the House of Representatives--Rules, Procedures, 
Precedents, Customs, and Practice. Hearing. October 25, 2007. 
PRINTED.
    Interviews Conducted During the Course of the Investigation 
of the Voting Irregularities of August 2, 2007. 2008. PRINTED
    Investigative Hearing Regarding Roll Call 814, Day 1. 
Hearing. May 13, 2008.
    Investigative Hearing Regarding Roll Call 814, Day 2. 
Hearing. May 14, 2008.
               PART III--COMMITTEE CONSIDERATION

                        Committee Consideration

    The Select Committee met in open session on September 25, 
2008, and adopted this report by a record vote of 6 yeas and no 
nays.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Select Committee to list the 
record votes on the motion to report legislation and amendments 
thereto. A motion by Mr. Delahunt to adopt this report and 
transmit it to the House was agreed to by a record vote of 6 
yeas and no nays. The names of Members voting for and against 
follow:
              --YEAS--                      --NAYS--
      Mr. Delahunt                        
      Mr. Davis                           
      Ms. Herseth Sandlin                 
      Mr. Pence                           
      Mr. LaTourette                      
      Mr. Hulshof                         
                       PART IV--APPENDIX

                            Materials Cited

                       congressional publications

    Wm. Holmes Brown & Charles W. Johnson, House Practice: A 
Guide to the Rules, Precedents, and Procedures of the House. 
2003.
    Michael L. Koempel & Judy Schneider, CRS Memorandum to 
Select Committee Chairman, Concordance of Questions and Answers 
from Hearings of the Select Committee to Investigate the Voting 
Irregularities of August 2, 2007, (Dec. 2007).
    Michael L. Koempel, Jacob R. Straus & Judy Schneider, CRS 
Report RL34570, Record Voting in the House of Representatives: 
Issues and Options (July 3, 2008).
    Jacob R. Straus, CRS Report RL34366, Electronic Voting 
System in the House of Representatives: History and Evolution 
(May 8, 2008).
    John V. Sullivan. Constitution, Jefferson's Manual, and 
Rules of the House of Representatives of the United States, 
110th Congress. H. Doc. 109-157. 2007.
    127 Cong. Rec. H9682-9685 (daily ed. Aug. 3, 2007, vol. 1).
    126 Cong. Rec. H9650 (daily ed. Aug. 2, 2007, vol. 2).

                               discovery

    Legislative Computing Systems, Office of the Clerk. Using 
the Electronic Voting System: U.S. House of Representatives: 
Tally Clerk User Manual. August 30, 2004.
    Miller, Lorraine C. Clerk's Briefing to House Committee on 
House Administration. Aug. 16, 2007. CLERK 467-494.
    Miller, Lorraine C. Draft Memorandum from Lorraine Miller, 
Clerk of the House to House Committee on House Administration. 
Sept. 2007.
    Sullivan, John V. Reflections on Roll Call 814. Received by 
Select Committee Jan. 4, 2008.

                   hearings, meetings, and briefings

    Organizational Meeting on Adoption of Committee Rules; 
Consideration of Interim Report; and Hearing on Voting in the 
House of Representatives. Meeting and Hearing. September 27, 
2007.
    Member Briefing on Voting in the House of Representatives--
The Rostrum and the Electronic Voting System: A ``Walkthrough'' 
by the Clerk of the House Lorraine C. Miller. Briefing. October 
18, 2007.
    Voting in the House of Representatives--Rules, Procedures, 
Precedents, Customs, and Practice. Hearing. October 25, 2007.
    Investigative Hearing Regarding Roll Call 814, Day 1. 
Hearing. May 13, 2008.
    Investigative Hearing Regarding Roll Call 814, Day 2. 
Hearing. May 14, 2008.

                               interviews

    Staff Interview of De'Andre Anderson, Assistant Tally 
Clerk, Feb. 8, 2008, Interviews Conducted During the Course of 
the Investigation of the Voting Irregularities of August 2, 
2007. 2008
    Staff Interview of Kevin Hanrahan, Assistant Tally Clerk, 
Feb. 8, 2008, Id.
    Staff Interview of Ed Sorensen, Deputy Clerk, Feb. 4, 2008, 
Id.
    Staff Interview of Catlin O'Neill, Floor Assistant, Office 
of the Speaker, Feb. 28, 2008, Id.
    Member Interview of John V. Sullivan, Parliamentarian of 
the House, Feb. 27, 2008, Id.
    Member Interview of the Honorable Michael R. McNulty, M.C., 
Apr. 9, 2008, Id.
    Interview of the Honorable Steny Hoyer, Majority Leader of 
the House, Apr. 16, 2008, Id.

                                  
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