[House Report 117-28]
[From the U.S. Government Publishing Office]


117th Congress }                                          { Report
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                          { 117-28

======================================================================
 
       DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF 
 REPRESENTATIVE FROM THE FOURTEENTH CONGRESSIONAL DISTRICT OF ILLINOIS

                                _______
                                

May 11, 2021.--Referred to the House Calendar and ordered to be printed

                                _______
                                

Ms. Lofgren, from the Committee on House Administration, submitted the 
                               following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                       [To accompany H. Res. 379]

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

    DISMISSING THE ELECTION CONTEST IN THE FOURTEENTH CONGRESSIONAL 
                          DISTRICT OF ILLINOIS

    The Committee on House Administration, having had under 
consideration an original resolution dismissing the election 
contest in the Fourteenth Congressional District of Illinois, 
report the same to the House with recommendation that the 
resolution be agreed to.

                            COMMITTEE ACTION

    On April 28, 2021, by a voice vote, a quorum being present, 
the Committee agreed to a motion to report the resolution 
favorably to the House.

                    COMMITTEE OVERSIGHT AND FINDINGS

    In compliance with House Rule XIII, clause 3(c)(1), the 
Committee states 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 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. XXX, 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 January 4, 2021, James ``Jim'' Oberweis (``Contestant'') 
filed a Notice of Contest with the Clerk of the House of 
Representatives pursuant to the Federal Contested Election Act 
(FCEA).\1\ Contestant ran as the nominee of the Republican 
Party for the office of Representative to the United States 
Congress representing the Fourteenth Congressional District of 
the State of Illinois in the November 3, 2020, general 
election. The other principal candidate for the Fourteenth 
Congressional District was incumbent Democrat Lauren Underwood 
(``Contestee''). On December 4, 2020, the Illinois State Board 
of Elections certified the results as follows: Contestee 
received 203,209 votes (50.67%) and Contestant received 197,835 
votes (49.33%), a margin of 5,347 votes. Contestant filed this 
Notice of Contest on January 3, 2021.
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    \1\2 U.S.C. Sec. Sec.  381-396.
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                            BASIS OF CONTEST

    In his Notice of Contest, Contestant alleges that the 
official election results for the Fourteenth Congressional 
District of Illinois should be invalidated due to alleged 
violations of the Equal Protection Clause related to alleged 
unequal administration of the election by local authorities. 
Contestee further alleges a variety of violations of Illinois 
election law, fraud, and other irregularities. Contestant 
alleges that, but for the alleged fraud, irregularities and 
statutory and constitutional violations, Contestant would have 
won the November 3, 2020, election for the Fourteenth 
Congressional District. Contestant asks that, among other 
relief, the House order that all vote-by-mail ballots cast in 
the election be invalidated, a recount, and, in the 
alternative, deem the November 3 election ``null and void'' and 
order a new election pursuant to the authority of Article I, 
Section 5 of the United States Constitution.\2\
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    \2\See generally Notice of Contest, Oberweis v. Underwood 
(``Notice'').
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                                STANDING

    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\ Contestant was the Republican nominee and 
his name appeared as a candidate for the Fourteenth 
Congressional District on the official ballot for the November 
3, 2020, election, thereby satisfying the standing requirement.
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    \3\2 U.S.C. Sec.  382(a).
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                             TIMING/NOTICE

    FCEA requires that a contestant ``shall, within thirty days 
after the result of such election shall have been declared by 
the officer or Board of Canvassers authorized by law to declare 
such result, file with the Clerk and serve upon the contestee 
written notice of his intention to contest such election.''\4\ 
The Notice of Contest was filed with the Clerk of the House of 
Representatives on January 4, 2021, and was subsequently served 
upon Contestee. Contestee disputes whether Contestant timely 
served the Notice of Contest.\5\
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    \4\Id.
    \5\Because the Committee determines that Contestant's claim 
warrants dismissal on the merits, the Committee exercises its 
discretion not to address Contestee's arguments regarding the alleged 
failure of timely service. See Tataii v. Abercrombie, H. Rep. 111-68, 
at 3 (2009).
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                         RESPONSE BY CONTESTEE

    On February 3, 2021, Contestee filed a Motion to Dismiss 
Contestant's Notice of Contest in response to Contestant's 
Notice of Contest challenging the results of the 2020 General 
Election for the Fourteenth Congressional District of the State 
of Illinois. Contestee maintains that the contest against her 
should be dismissed because Contestant failed to set forth with 
particularity, as required by 2 U.S.C. Sec. 382(b), grounds 
sufficient to change the result of the election.\6\
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    \6\Pursuant to Committee Resolution 117-10, the Contestant filed a 
response in opposition to the motion to dismiss and the Contestee filed 
a reply in support of the motion to dismiss. See Contestant's Response 
to Contestee's Motion to Dismiss Notice of Contest (``Response''); 
Contestee's Reply in Support of Motion to Dismiss Contestant's Notice 
of Contest.
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                STANDARD FOR GRANTING MOTION TO DISMISS

    The House of Representatives has the constitutionally-
vested power to judge its own elections.\7\ The FCEA sets forth 
procedures under which an eligible losing candidate may bring a 
contest to the House of Representatives following certification 
of the election. Under the FCEA, the ``burden is upon [the] 
contestant to prove that the election results entitle him to 
contestee's seat.''\8\ A contestant therefore ``must proffer 
allegations that, if proven, would have altered the election 
outcome.''\9\ 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.\10\ To that end, the 
contestant must show that ``through fraud, misconduct, mistake, 
or irregularities the results of the election would have been 
different.''\11\ Accordingly, to survive a motion to dismiss, 
the contestant must credibly allege that there are ``a 
sufficient number of potential votes in actual contention to 
warrant the committee granting the relief sought.''\12\
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    \7\U.S. Const. art. I, Sec. 5 (``Each House shall be the Judge of 
the Elections, Returns and Qualifications of its own Members.'').
    \8\2 U.S.C. Sec. 385.
    \9\Russell v. Brown-Waite, H. Rep. 110-178, at 3 (2007).
    \10\2 U.S.C. Sec. 385.
    \11\Young v. Mikva, H. Rep. 94-759 (1975).
    \12\ Tunno v. Veysey, H. Rep. 92-626 (1971), at 3-4 (1971); see 
also Anderson v. Rose, H. Rep. 104-852, at 9-13 (1996) (dismissing 
contest where claims for which contestant provided specific and 
credible allegations of irregularities did not impact sufficient number 
of votes to alter the election outcome); McCuen v. Dickey, H. Rep. 103-
109, at 7 (1993) (dismissing contest where contestant failed to present 
``credible evidence of irregularities sufficient to change the result 
of the election''); Peterson v. Gross, H. Rep. 89-1127, at 4 (1965) 
(dismissing contest where ``even if the alleged . . . irregularities 
had . . . existed[,] there is no proof the results of the election 
would have been different'' (quotation omitted)).
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    The FCEA standard for reviewing the allegations in a motion 
to dismiss blends ``Rules 12(b)(6) and 56 of the Federal Rules 
of Civil Procedure.''\13\ As under Rule 12(b)(6), a 
contestant's allegations cannot merely be possible; they must 
at least be plausible. But a contestant must also provide 
``sufficient supportive evidence'' to render the allegations 
credible, and cannot simply rely ``on general, or disproven 
claims of fraud or irregularities.''\14\ This is ``similar to 
the standard a judge would utilize in viewing the evidence at 
issue in a Rule 56 motion for summary judgment.''\15\
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    \13\Dornan v. Sanchez, H. Rep. 105-416, at 8 (1998).
    \14\Tunno v. Veysey, H. Rep. 92-626, at 3 (1971); accord Anderson 
v. Rose, H. Rep. 104-852, at 6-7 (1996).
    \15\Dornan v. Sanchez, H. Rep. 105-416, at 9 (1998); see also 
Anderson v. Rose, H. Rep. 104-852, at 7 (1996) (``[T]he standard 
balances the need of the House to allow for [meaningful] discovery 
while recognizing that mere notice pleading is insufficient in the face 
of credible contrary evidence.'').
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                                ANALYSIS

    The Committee finds that Contestant has failed to make a 
credible and specific claim that he is entitled to office. 
Contestant has not credibly alleged that a sufficient number of 
votes are in contention to place the result of the election in 
question.
    Contestant first maintains that his equal protection claims 
are sufficient, by themselves, to overcome the 5,347-vote 
margin. The alleged violations of the Equal Protection Clause 
relate to the mailing and counting of vote-by-mail ballots. 
Contestant maintains that the Equal Protection Clause was 
violated because certain county clerks, for example the Kane 
County Clerk, allegedly mailed vote-by-mail applications to a 
larger universe of registered voters than other county clerks 
and allegedly counted vote-by-mail ballots that were not 
initialed by election judges, whereas other county clerks did 
not.\16\ According to Contestant, if all vote-by-mail ballots 
in Kane County are invalidated, and the candidates' vote totals 
are ``proportionately reduced,'' Contestant would prevail by 
over 9,300 votes.\17\ Contestant makes no allegation as to the 
potential impact of these alleged equal protection violations 
on the vote totals from other counties in the Fourteenth 
Congressional District.
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    \16\See Notice 25; Response at 25-26.
    \17\Notice 25.
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    Even assuming Contestant's equal protection claims are 
cognizable--a factual and legal question this Committee need 
not, and does not, reach--Contestant would not be entitled to 
the relief he seeks because, as a general matter, the 
constitutionally appropriate remedy for alleged inequities in 
the administration of elections is not to invalidate votes.\18\ 
The constitutional presumption against invalidation of votes as 
a remedy for alleged equal protection violations premised on 
inconsistencies in the administration of election laws is 
consistent with this Committee's longstanding practice of 
counting all ballots validly cast by eligible voters where the 
voters' intent is clear.\19\
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    \18\King v. Whitmer, ---F. Supp. 3d ---, 2020 WL 7134198, at *9 
(E.D. Mich. Dec. 7, 2020) (holding that ``de-certifying'' facially 
valid votes is not a proper remedy for an equal protection claim 
premised on alleged irregularities in the processing and tabulation of 
votes by election officials); Donald J. Trump for President, Inc. v. 
Boockvar, ---F. Supp. 3d---, 2020 WL 6821992, at *1-2,*12 (M.D. Pa. 
Nov. 21, 2020) (holding that ``invalidat[ing]'' facially valid votes is 
not a proper remedy for equal protection claim premised on alleged 
inconsistencies in the administration of state election laws), aff'd 
830 Fed. App' 377 (3d Cir. 2020).
    \19\See Roush or Chambers, H. Rep. 87-513, at 22-28 (1961); Kyros 
v. Emery, H. Rep. 94-760, at 5 (1975); Tunno v. Veysey, H. Rep. 92-626, 
at 4-10 (1971) (collecting treatises, cases); In reAlford, H. Rep. 86-
1172 (1959).
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    Contestant makes no allegation that the intent of the 
thousands of vote-by-mail voters whose ballots Contestant seeks 
to invalidate is unclear. Because the remedy Contestant seeks 
would improperly disenfranchise voters based on alleged 
administrator error alone, these allegations cannot help him 
carry his burden to plead grounds ``sufficient to change [the] 
result of [the] election.''\20\ Contestant offers no reason why 
the county election officials' alleged inconsistencies in 
disseminating vote-by-mail applications and processing vote-by-
mail ballots warrant denying the franchise to the thousands of 
voters whose votes Contestant seeks to invalidate. Accordingly, 
the Committee concludes that Contestant has not made a credible 
and specific claim that the alleged equal protection violations 
would lead to any reduction in the 5,347-vote margin.
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    \20\See 2 U.S.C. Sec. 383(b)(3).
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    Contestant further alleges several violations of Illinois 
law, fraud, and other irregularities. In particular, Contestant 
alleges, among other theories, that certain individuals not 
legally residing within the Fourteenth Congressional District 
voted in the election, that certain individuals were improperly 
denied the right to vote provisionally, that certain vote-by-
mail ballots were improperly stored in unsealed boxes, that 
certain vote-by-mail ballots were counted even though they were 
requested or cast outside of statutory deadlines, and that, in 
one county, more ballots were cast than voters who voted. Even 
assuming Contestant's additional claims are valid--again, a 
factual and legal question this Committee need not, and does 
not, reach--Contestant concedes that the aggregate number of 
votes in contention related to these remaining claims are 
insufficient, by themselves, to change the outcome of the 
election.\21\
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    \21\Notice 24 & n.2, 29 (proposed reductions to remedy all 
allegations of voter fraud would net fewer than 2,000 votes).
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    Because Contestant has not alleged that the number of votes 
legally in dispute is sufficient to alter the outcome of the 
election, the Committee finds that Contestant has failed to 
make a credible and specific claim that he is entitled to 
office.

                               CONCLUSION

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

                             MINORITY VIEWS

    The Minority disagrees with the Majority's decision to 
proceed immediately to an analysis of the merits\1\ despite 
clear procedural defect and would dismiss the contest solely on 
procedural grounds without reaching consideration of the 
merits.
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    \1\The Minority does not adopt or join the Majority's analysis of 
the merits of the Contest.
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              DISMISSAL OF COMPLAINT ON PROCEDURAL GROUNDS

    The Federal Contested Elections Act (FCEA) requires a 
Contestant to file a Notice of Contest with the Clerk of the 
House of Representatives and to serve the Contestee within 30 
days of the state certification of the election. The FCEA 
permits five methods of service: (1) by delivering a copy to 
contestee personally; (2) by leaving a copy at contestee's 
house or usual place of abode; (3) by leaving a copy at 
contestee's ``principal office or place of business with some 
person then in charge thereof;'' (4) ``by delivering a copy to 
an agent authorized by appointment to receive service of such 
notice;'' and (5) ``by mailing a copy by registered or 
certified mail addressed to contestee at his residence or 
principal office or place of business. Service by mail is 
complete upon mailing.''\2\
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    \2\Federal Contested Election Act, 2 U.S.C. Sec.  382 (1996).
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    In this case, there is no dispute that Contestant's Notice 
of Contest was filed properly and timely with the Clerk of the 
House on January 4, 2021, and that the FCEA required Contestant 
to complete proper service of process on the Contestee no later 
than January 4, 2021. However, Contestant's service of the 
Notice of Contest upon Contestee was not timely and failed to 
qualify as an acceptable method of service pursuant to the 
FCEA.

                                ANALYSIS

    In response to Contestee's Motion to Dismiss, Contestant 
argues that service of process was effected on January 4, 2021, 
in accordance with the FCEA in one of following three ways: (1) 
by leaving a copy of the Notice of Contest with the Clerk of 
the House for Contestee; (2) by leaving a copy of the Notice of 
Contest under Contestee's office door in the Longworth House 
Office Building; or (3) by mailing a copy of the Notice of 
Contest to Contestee's office in Washington, D.C.\3\ Finally, 
despite Contestant's contention that service was proper and 
timely, Contestant also argues in the alternative that any 
alleged defect in service upon Contestee should be waived by 
the Committee and the contest be decided solely on the merits. 
However, Contestant's claims clearly fall short of the 
requirements for proper service in the FCEA.
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    \3\Service of the notice of contest upon a contestee may also be 
effected by: (1) by delivering a copy to him personally; or (2) by 
leaving a copy at his dwelling house or usual place of abode with a 
person of discretion not less than sixteen years of age then residing 
therein. 2 U.S.C. Sec.  382(c).
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1. Leaving a copy of the Notice of Contest with the Clerk of the House 
        for Contestee
    On January 4, 2021, the Contestant's agent delivered a 
Notice of Contest, addressed to Lauren Underwood, Washington, 
D.C., Office, 1118 Longworth House Office Building, Washington, 
D.C. 20515, to Clerk of the House Cheryl Johnson. While the 
Longworth House Office Building (Longworth) and the Capitol 
Complex are places of business for Members of Congress, the 
Clerk of the House's office is not Contestee's principal 
office, nor is the Clerk of the House the ``person in 
charge''\4\ of Contestee's principal office in Longworth. 
Finally, the Clerk of the House has not qualified as an agent 
of Contestee. Therefore, delivery of the Notice of Contest to 
the Clerk of the House is not proper service of process 
pursuant to the FCEA under any proffered theory.
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    \4\Id.
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2. Leaving a copy of the Notice of Contest under Contestee's office 
        door in Longworth House Office Building
    Contestant argues that, on January 4, 2021, after knocking 
and receiving no answer at the door of Contestee's office in 
Longworth House Office Building, Contestant's agent attempted 
to complete service by leaving a copy of the Notice of Contest 
under Contestee's office door. However, the language of the 
FCEA is clear that, for service of process to be proper using 
this method, the Notice of Contest must be left with an 
individual in charge of the office, such as the Chief of Staff 
or the Office Manager. Placing a copy of the Notice of Contest 
under the door of an empty office is not sufficient to fulfill 
the requirements prescribed by the FCEA and therefore does not 
qualify as proper service of process.
3. Mailing a copy of the Notice of Contest to Contestee's Washington, 
        D.C., office
    In an affidavit, Contestant's agent stated that she placed 
a copy of the Notice of Contest, addressed to Lauren Underwood, 
Washington, D.C., Office, 1118 Longworth House Office Building, 
Washington, D.C. 20515, in a post office collection box in 
Waukegan, Illinois, on January 4, 2021. However, the postmark 
on the outer envelope of the Notice of Contest depicts a date 
of January 5, 2021, one day after the service of process 
deadline.\5\
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    \5\See Pomales Aff. (Contestant's Ex. B.)
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    Contestant explains that mail deposited with post office 
collection locations in rural areas of northern Illinois is 
transported the next day more than fifty miles to Carol Stream, 
Illinois, for postmarking and processing. Nevertheless, 
postmarks are the widely accepted evidence for determining the 
date and time of mailing. Therefore, despite assertions to the 
contrary by Contestant, a mailing with a January 5, 2021, 
postmark does not constitute timely service upon Contestee.
4. Any alleged defect should be waived by the Committee
    Lastly, Contestant contends that if the Committee 
determines that the service of the Notice of Contest upon 
Contestee was not proper, the Committee should elect to waive 
that defect and move immediately to consideration of the merits 
of the election contest. Specifically, Contestant claims that 
he has demonstrated ``good cause'' for waiver because he 
attempted to leave a copy of the Notice of Contest with someone 
in charge at Contestee's Longworth office, yet was unable to do 
so because House Offices were vacant due to COVID-19 protocols. 
He further states that ``if a global pandemic, emptying House 
chambers of personnel who would ordinarily accept service is 
not `good cause' for a 48-hour delay in service, then nothing 
is.''\6\
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    \6\See Contestant's Response to Contestee's Motion to Dismiss 
Notice of Contest, Oberweis v. Underwood, at 8.
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    In support of his argument for waiving his defect in 
service, Contestant relies on an election contest filed with 
the House in the 111th Congress in which the Committee decided 
to evaluate the merits of the Contestant's claims even though 
the Notice of Contest was served untimely. In that contest, it 
appears that the Contestant may have received inaccurate advice 
with respect to the filing deadline.\7\ While Contestant is 
correct that most House Offices (perhaps even Contestee's) were 
then vacant due to the COVID-19 protocols, this mere fact does 
not warrant the Committee waiving the deadline for timely and 
proper service. There is no doubt that physical presence in the 
House Office buildings was significantly limited on January 4, 
2021. However, leaving a copy of a Notice of Contest at the 
Contestee's principal office or place of business with a person 
then in charge thereof was not the only method of service 
available to Contestant. Despite the difficulties described, 
this method is the one that he, to his own legal detriment, 
chose to use.
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    \7\Tataii v. Abercrombie, H. Rept. 111-68 (2009).
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                               CONCLUSION

    Contestant failed to effect proper and timely service of 
process on Contestee, a fatal procedural error. Contestant 
could have used any of the five methods of service of process 
provided under the FCEA to effect proper and timely service 
upon Contestee.\8\ He chose to attempt service by delivering a 
copy of the Notice of Contest to the Contestee's principal 
office or place of business in the care of a person in charge; 
however, the Contestant failed in this attempt. None of 
Contestant's other legal theories is sufficient to cure this 
clear procedural defect. Finally, the Minority notes that other 
Contestants who filed election contests with the House for the 
117th Congress did not suffer such issues with completing 
proper and timely service of process upon the relevant 
Contestees.
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    \8\2 U.S.C. Sec.  382.
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    For the reasons stated above, the Minority would dismiss 
the Notice of Contest solely on procedural grounds without 
reaching consideration of the merits.
                                      Rodney Davis,
                                            Ranking Member,
                                 Committee on House Administration.

                                  [all]