[House Report 113-132]
[From the U.S. Government Publishing Office]


113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    113-132

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

 
       DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF 
   REPRESENTATIVE FROM THE NINTH CONGRESSIONAL DISTRICT OF TENNESSEE

                                _______
                                

   June 26, 2013.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mrs. Miller of Michigan, from the Committee on House Administration, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                       [To accompany H. Res. 277]

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

DISMISSING THE ELECTION CONTEST IN THE NINTH CONGRESSIONAL DISTRICT OF 
                               TENNESSEE

    The Committee on House Administration, having had under 
consideration an original resolution dismissing the election 
contest against Steve Cohen, report the same to the House with 
the recommendation that the resolution be agreed to.

                            COMMITTEE ACTION

    On June 4, 2013, by a voice vote, a quorum being present, 
the Committee agreed to a motion to report the resolution 
favorably to the House.

                      COMMITTEE OVERSIGHT FINDINGS

    In compliance with House Rule XIII, clause 3(c)(1), the 
Committee states that the findings and recommendations of the 
Committee, based on oversight activities under House Rule X, 
clause 2(b)(1), are incorporated into the general discussion 
section of this report.

            STATEMENT OF BUDGET AUTHORITY AND RELATED ITEMS

    The resolution does not provide new budget authority, new 
spending authority, new credit authority, or an increase or 
decrease in revenues or tax expenditures and a statement under 
House Rule XIII, clause 3(c)(2), and section 308(a)(1) of the 
Congressional Budget Act of 1974 is not required.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    In compliance with House Rule XIII, clause 3(c)(3), the 
Committee states, with respect to H. Res. 277, that the 
Director of the Congressional Budget Office did not submit a 
cost estimate and comparison under section 402 of the 
Congressional Budget Act of 1974.

                           STATEMENT OF FACTS

    On March 27, 2013, Project Hurt (``Contestant'') filed a 
Notice of Contest with the Clerk of the House of 
Representatives for the Ninth Congressional District. Project 
Hurt did not run for office as part of the November 6, 2012 
election. The candidate who won the election for the Ninth 
Congressional District of Tennessee was incumbent Democrat 
Steve Cohen (``Contestee'').

                            BASIS OF CONTEST

    In the Notice of Contest, Project Hurt gives no basis to 
contest the outcome of the election. The organization does not 
allege any irregularity in the voting process. No claims have 
been made of fraud or illegality in the voter registration, 
vote casting, vote counting, or vote reporting. Nowhere in the 
filing does the organization claim the results of the election 
were inaccurate.
    The crux of Project Hurt's accusations against Congressman 
Cohen is that he failed to respond to Project Hurt's grievances 
sent to the Congressman about allegedly impeachable offenses by 
President Obama. Project Hurt now asserts that, in doing so, 
Congressman Cohen is complicit in those ``massive criminal 
activities.'' Project Hurt asserts that those criminal 
activities prevented the organization from recruiting 
candidates to run for office.

                                STANDING

    Under the requirements of the FCEA, to be a valid 
Contestant the contesting party must be an individual.\1\ The 
notice of contest in this case was filed by Project Hurt, an 
organization claiming to be a registered 501(c)(3) not for 
profit organization. Accordingly, Project Hurt does not meet 
the definition of Contestant under the FCEA and is not 
authorized to file a contest.\2\
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    \1\2 U.S.C. Sec. 381(3).
    \2\Even if this contest were filed by Project Hurt founder Dwayne 
Anderson in his individual capacity, because of the other defects of 
the filing detailed in this report the Committee still would not have 
entertained it.
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    However, even if Project Hurt fit the definition of 
Contestant under the act, to have standing under the FCEA a 
Contestant must have been a candidate for election to the House 
of Representatives in the last preceding election and claim a 
right to the Contestee's seat.\3\ Project Hurt was not a 
candidate in the Ninth Congressional District of Tennessee for 
the November 6, 2012, election, and Project Hurt does not claim 
a right to the office.
---------------------------------------------------------------------------
    \3\2 U.S.C. Sec. 382(a).
---------------------------------------------------------------------------
    Project Hurt is not a valid Contestant under the statute, 
was not a candidate in the last preceding election, and does 
not claim a right to office. Therefore, Project Hurt does not 
have standing to pursue a contest.

                             TIMING/NOTICE

    The FCEA requires that any person seeking to contest the 
election of a Member of the House of Representatives file 
notice of his or her intent to contest the election within 
thirty days after the result has been certified.\4\ The 
Secretary of State from the State of Tennessee certified the 
election on December 5, 2012. Project Hurt filed the Notice of 
Contest with the Clerk of the House of Representatives on March 
27, 2013, 112 days past the certification date.
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    \4\2 U.S.C. Sec. 382(a).
---------------------------------------------------------------------------
    The Notice of Contest was not timely and therefore should 
not be considered.

                STANDARD FOR GRANTING MOTION TO DISMISS

    The House of Representatives has the constitutionally 
vested power to judge its own elections.\5\
---------------------------------------------------------------------------
    \5\U.S. Const. art. I, Sec. 5.
---------------------------------------------------------------------------
    The FCEA sets forth procedures under which a Contestant may 
bring a contest to the House of Representatives. Under the 
FCEA, it is not sufficient for a Contestant merely to allege 
irregularities or fraud in an election. The Contestant must 
claim a right to the office.\6\ The contestant must support 
this claim with specific credible allegations of irregularity 
or fraud that if proven true, would entitle the contestant to 
the office.\7\ Unless a contestant credibly claims in his 
Notice of Contest a right to the office, the House of 
Representatives will dismiss the Contest.\8\
---------------------------------------------------------------------------
    \6\2 U.S.C. Sec. 382.
    \7\See, e.g., Pierce v. Pursell, H. Rep. 95-245 (1977).
    \8\Anderson v. Rose, H. Rep. 104-852 (1996).
---------------------------------------------------------------------------

                                ANALYSIS

    Project Hurt is not a valid Contestant under the statute. 
Additionally, Project Hurt was not a candidate for office in 
the preceding election, and did not claim a right to office. 
Project Hurt did not timely file the contest or make any claim 
of irregularity or fraud in the election of the Congressman 
from the Ninth Congressional District of Tennessee. Project 
Hurt's claims against Congressman Cohen do not in any way speak 
to whether or not he was validly elected. They are outside the 
scope of the FCEA, and outside the Committee on House 
Administration's jurisdiction. All of these statements would be 
equally true had Dwayne Anderson filed the contest in his 
individual capacity.

                               CONCLUSION

    For the reasons discussed above, the Committee therefore 
concludes that this contest should be dismissed.

 ADDITIONAL VIEWS OF RANKING MEMBER ROBERT A. BRADY, REP. ZOE LOFGREN 
                          AND REP. JUAN VARGAS

    We reluctantly acquiesced in the majority's desire to 
originate privileged resolutions to dismiss this ``election 
contest'' against Rep. Steve Cohen , as well as the identical 
one against Rep. Maxine Waters. These Members appear to have 
been chosen essentially at random by the ``contestant.'' (Cover 
letter by the Clerk of the House and ``Notice of Contested 
Election'' appear in the Appendix following these views)
    There is nothing in the House rules which requires the 
Committee, or the House, to address a matter which is not a 
proper election contest. Sections 5.1 (p. 348), 6.6 (p. 355), 
19.6 (p. 389) and 53.2 (pages 539-542) of volume 2 of 
Deschler's Precedents of the U.S. House of Representatives 
discuss In re Plunkett, a 1945 contest initiated by a non-
candidate purporting to challenge the elections of 79 Members. 
According to these citations, ``the committee took no action on 
the matter, it appearing that the contestant, not being a 
candidate in the disputed election, was not qualified to 
initiate the proceedings''.
    There is no record the committee submitted a report in this 
case or that the House acted in any way upon the contest.
    In the 1941 contest, Miller v. Kirwan, Deschlers sec. 51.1, 
p. 525, the Majority Leader brought a resolution to the floor 
summarily dismissing the case without committee action, on the 
grounds that Miller had not been a general election candidate 
and was not competent to bring a contest for the seat.
    The Committee on House Administration, its predecessor 
panels and the House have acted in the past to dismiss 
meritless and frivolous contests, but these new cases should 
prod the Committee to adopt clearer standards before wasting 
either our own time or that of the House. The report outlines 
the reasons why this is not a proper election contest, yet 
instead of drawing the conclusion that it did not merit a 
response, the majority presses ahead anyway to present a 
resolution to the House.
    The majority would contend that the Committee must act on 
everything presented to it in the guise of an election contest, 
in order to ensure that no legitimate future challenge is 
unfairly buried by a partisan majority. However, our role as 
elected Members of the House is to make choices, to review 
issues on behalf of the House, and to make recommendations, or 
take action, or not, as appropriate. Even if the Committee were 
to make an egregious error in failing to consider a particular 
contest, the matter could still be raised independently on the 
Floor by any Member as a question of the privileges of the 
House pursuant to Rule IX.
    In the instant case, the ``contestant'' did not run against 
the incumbent Member and is not even a person, being described 
as ``Project Hurt'', a name of a purported organization linked 
to a convicted felon, Dwayne Anderson, incarcerated at Hardeman 
County Correctional Facility in Whiteville, Tennessee. No 
allegations were made disputing the validity of Rep. Cohen's 
election. As stated in the draft report presented at the House 
Administration Committee markup of June 4, 2013, this matter 
gives no basis to contest the outcome of his election, does not 
meet the definition of contestant under the FCEA, and was filed 
too late. Notably, the report states, relating to the 
allegations: ``They are outside the scope of the FCEA and 
outside the Committee on House Administration's jurisdiction.''
    The report appears to raise doubts that there was anything 
before the Members which could be acted upon in the form of a 
report or resolution, which the Committee claims to be 
privileged under Rule X, clause 1(k)(12) and clause 5(a)(3) of 
Rule XIII, relating to the Committee's authority to file 
privileged reports at any time on contested elections.
    The fact that a person, or entity, does not like a 
particular Member or Members of the House should not qualify as 
an election contest. In the Committee's logic, an otherwise 
blank sheet of paper stating, as this one does, that Member X 
is ``hereby contested'' could set in motion an inexorable chain 
of events requiring a vote by and consuming the time of the 
House. This should not be the case.
    We are ready to work with the majority to develop standards 
to facilitate consideration of proper election contests. 
Perhaps those which are blatantly frivolous could be disposed 
of through adoption of internal committee resolutions 
describing, for the historical record, the reasons for such 
action. These would not require any action by the House.

                                APPENDIX



                                   Robert A. Brady.
                                   Zoe Lofgren.
                                   Juan Vargas.

                                  
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