[House Report 105-416]
[From the U.S. Government Publishing Office]
_______________________________________________________________________
105th Congress Report
2d Session HOUSE OF REPRESENTATIVES 105-416
_______________________________________________________________________
DISMISSING THE ELECTION CONTEST AGAINST LORETTA SANCHEZ
----------
REPORT
of the
COMMITTEE ON HOUSE OVERSIGHT
on
H.R. 355
together with
MINORITY VIEWS
February 12, 1998.--Referred to the House Calendar and ordered to be
printed
_______________________________________________________________________
105th Congress Report
2d Session HOUSE OF REPRESENTATIVES 105-416
_______________________________________________________________________
DISMISSING THE ELECTION CONTEST
AGAINST LORETTA SANCHEZ
__________
REPORT
of the
COMMITTEE ON HOUSE OVERSIGHT
on
H.R. 355
together with
MINORITY VIEWS
February 12, 1998.--Referred to the House Calendar and ordered to be
printed
U.S. GOVERNMENT PRINTING OFFICE
46-426 WASHINGTON : 1998
COMMITTEE ON HOUSE OVERSIGHT
BILL THOMAS, California, Chairman
ROBERT W. NEY, Ohio SAM GEJDENSON, Connecticut
VERNON J. EHLERS, Michigan STENY H. HOYER, Maryland
JOHN A. BOEHNER, Ohio CAROLYN C. KILPATRICK, Michigan
KAY GRANGER, Texas
JOHN L. MICA, Florida
Cathy Abernathy, Staff Director
Robert Baskin, Minority Staff Director
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Task Force for The Contested Election in the 46th Congressional
District of California
VERNON J. EHLERS, Michigan, Chairman
ROBERT W. NEY, Ohio STENY H. HOYER, Maryland
(II)
C o n t e n t s
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Page
1. Majority Report............................................... 1
2. Appendices:
A. Chronology of Events...................................... 17
B. Investigation by the Task Force........................... 29
C. Field Hearing............................................. 88
D. Interrogatories Issued by the Committee................... 93
E. Subpoenas Issued by the Committee......................... 237
F. Investigations by State and Local Authorities............. 337
G. Contestant's Criminal Complaint Against Hermandad Mexicana
Nacional................................................... 425
H. Federal Court Decisions................................... 508
I. INS Production............................................ 594
J. Quashing and Modifying Subpoenas.......................... 777
K. Filings of the Parties.................................... 918
L. The Federal Contested Election Act........................ 1000
M. Critique of Proportional Reduction........................ 1022
3. Supplemental Views:
A. Minority Views of the Honorable Sam Gejdenson, the
Honorable Steny Hoyer, and the Honorable Carolyn Kilpatrick 1025
B. Minority Views of the Honorable Steny Hoyer and the
Honorable Carolyn Kilpatrick............................... 1063
C. Minority Views of the Honorable Carolyn Kilpatrick........ 1065
(III)
105th Congress Report
2d Session HOUSE OF REPRESENTATIVES 105-416
_______________________________________________________________________
DISMISSING THE ELECTION CONTEST AGAINST LORETTA SANCHEZ
_______
February 11, 1998.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Thomas, from the Committee on House Oversight, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H. Res. 355]
The Committee on House Oversight, having had under
consideration the resolution (H. Res. 355), dismissing the
election contest against Loretta Sanchez, reports the same to
the House with the recommendation that the resolution be agreed
to.
dismissing the election contest against loretta sanchez
The Committee on House Oversight, having had under
consideration the resolution H. Res. 355, dismissing the
election contest against Loretta Sanchez, reports the same to
the House with the recommendation that the resolution be agreed
to.
committee action
On February 4, 1998, by a vote of 8-1, a quorum being
present, the Committee agreed to a motion to report the
resolution favorably to the House. Yeas: Mr. Thomas, Mr. Ney,
Mr. Ehlers, Mr. Boehner, Ms. Granger, Mr. Gejdenson, Mr. Hoyer,
Ms. Kilpatrick. Nay: Mr. Mica.
committee oversight findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee states
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
statement on budget authority and related items
The resolution accompanying this report does not provide
new budget authority, new spending authority, new credit
authority, or an increase or decrease in revenues of tax
expenditures and a statement under clause 2(l)(3)(B) of rule XI
of the Rules of the House of Representatives and section
308(a)(1) of the Congressional Budget Act of 1974 is not
required.
congressional budget office cost estimate
In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee states,
with respect to the resolution, that the Director of the
Congressional Budget Office did not submit a cost estimate and
comparison under section 403 of the Congressional Budget Act of
1974.
oversight findings of committee on government operations
The Committee states, with respect to clause 2(l)(3)(D) of
rule XI of the Rules of the House of Representatives, that the
Committee on Government Reform and Operations did not submit
findings or recommendations based on investigations under
clause 4(c)(2) of rule X of the Rules of the House of
Representatives.
task force on the contested election
Pursuant to rule 16(b) of the Rules of Procedure of the
Committee on House Oversight, the Honorable William M. Thomas,
Chairman of the Committee, established a Task Force on January
8, 1997, to examine the documentary record, to receive oral
arguments, and to recommend to the Committee, the disposition
of an election contest filed pursuant to the Federal Contested
Elections Act (FCEA), 2 U.S.C. Sec. Sec. 381-396 (1969), by
Robert Dornan against Loretta Sanchez.
statement of facts
Introduction
This report relates to the election contest filed
concerning the 1996 election for the House of Representatives
seat for the 46th Congressional District of California
(``District''). As discussed below, this election contest
arises under the United States Constitution, Article V, Sec. 1,
and the FCEA, 2 U.S.C. Sec. Sec. 381-396.
1996 Election for the 46th Congressional District of California
The principal candidates for the seat in the House of
Representatives in the election for the Forty-sixth
Congressional District of California on November 5, 1996 were
incumbent Representative Robert K. Dornan and challenger
Loretta Sanchez. On November 22, 1996 the Orange County
Registrar of Voters, Rosalyn Lever, certified Ms. Sanchez the
winner by 984 votes. Mr. Dornan requested a recount. On
December 9, 1997, as a result of the recount, Ms. Sanchez's
margin of victory was reduced to 979 votes.
Proceedings involving California agencies
Less than a month after the election, on December 4, 1997,
the California Secretary of State, Bill Jones, announced the
opening of an investigation of vote fraud during the 1996
election in the Forty-sixth Congressional District of
California. Orange County District Attorney, Michael Capizzi,
also announced that his office was undertaking a similar
investigation. On January 14, 1997, the Orange County District
Attorney conducted a search, under warrant, of the offices of
Hermandad Mexicana Nacional, a Latino community service
organization, alleged to be at the center of an effort to
register and encourage non-citizens to vote in the 1996
elections. At that time the Los Angeles District Office of the
Immigration and Naturalization Service assisted Secretary of
State Jones in identifying non-citizens who may have voted.\1\
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\1\ See Appendix F.
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Proceeding before the Committee on House Oversight
On December 26, 1997, Mr. Dornan filed a Notice of Contest
with the Committee (``Dornan's Notice'') under jurisdiction
granted by the U.S. Constitution \2\ and the FCEA.\3\ On
January 7, 1997, Ms. Sanchez was sworn in as a Member of the
105th Congress.\4\ On January 8, 1997 the Committee met and
formed a Task Force to handle this contest. Committee Chairman
William M. Thomas appointed two of the three Task Force
members, the Honorable Vernon Ehlers (R-MI, Chairman of the
Task Force) and the Honorable Robert Ney (R-OH). After more
than a month of delay, on February 11, 1997, the Committee
appointed the Democratic member to the Task Force, the
Honorable Steny Hoyer (D-MD).
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\2\ U.S. Const. art I, Sec. 5 (``Each House shall be the Judge of
the Elections, Returns and Qualifications of its own Members * * * '').
\3\ U.S.C. Sec. Sec. 381-396 (providing procedural framework in the
House of Representatives for a candidate to contest the election of a
Member of the House of Representatives).
\4\ This is in keeping with the traditions of the House. See, 105
Cong. Rec. 14 (195(); 77 Cong. Rec. 74 (1933). See also Young v. Mikva,
H.R. Rep. No. 244, 95th Cong., 1st Sess. 5 (1977); Ziebarth v. Smith,
H.R. Rep. No. 763, 94th Cong., 1st Sess. 15 (1975). Under those
precedents, a certificate of election must be afforded a strong
presumption of legality and correctness. Ziebarth v. Smith, H.R. Rep.
No 763, 94th Cong., 1st Sess., 15 (1975); Gormley v. Goss, H.R. Rep.
No. 839, 73d Cong., 2d Sess. (1934). In contrast, McCloskey v.
McIntyre, H.R. No. 58 99th Cong. 1st Sess. 91985) represents a gross
departure from the precedents of the House.
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On January 31, 1997, Ms. Sanchez filed a Motion to Dismiss
Notice of Election Contest or, in the Alternative, for a More
Definite Statement (``Sanchez's Motion''). On February 10,
1997, Mr. Dornan submitted an Opposition to Motion to Dismiss
or, in the Alternative, Response to Motion for a More Definite
Statement detailing his allegations of voter fraud. On February
12, 1997, the Task Force received a letter from Ms. Sanchez
requesting that the Task Force ``withhold consideration of
[her] motion'' until the Task Force conducted a hearing in
Orange County, California.5
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\5\ See Appendix C: April 19th Hearing.
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On February 26, 1997, the Task Force met for the first
time. At the meeting, Task Force Chairman Ehlers acknowledged
Ms. Sanchez's request for a hearing in the District and
recommended that the request be granted. The Task Force voted
to postpone the disposition of Ms. Sanchez's Motion to Dismiss
until a hearing on the merits.6 The hearing was
scheduled in Orange County to allow voters, election workers,
and local officials access to the hearing.
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\6\ Postponement of disposition on the Motion to Dismiss triggered
the FCEA's discovery provisions. 2 U.S.C Sec. 392- . As contemplated
by the statute, Ms. Sanchez's answer was due ten days after the
postponement of her Motion to Dismiss, or March 10, 1997. Id. On the
same date, Mr. Dornan's discovery period began, lasting until April 9,
1997. Ms. Sanchez's discovery period began on April 9, 1997 and lasted
until May 8, 1997.
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On April 19, 1997, in Orange County, California, the Task
Force held a hearing on the merits. During the hearing, the
Task Force heard presentations from Mr. Dornan and Ms. Sanchez
and their counsel, as well as testimony from several witnesses,
including Secretary Jones, District Attorney Capizzi, Orange
County Registrar of Voters Rosalyn Lever, Director of the Los
Angeles Region of the INS, Richard Rogers, and former, acting
California Secretary of State, Tony Miller. After each
presentation, Task Force members questioned the witness.
7
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\7\ See Appendix C.
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dornan's allegations
In his Notice, Mr. Dornan alleged the following grounds for
contesting the election: (a) that there were approximately
1,985 more ballots counted than voters voting who were
accounted for in county records; (b) that illegal votes were
cast in that persons cast multiple votes or voted from business
addresses; (c) that absentee ballots were cast improperly; (d)
that under-age voters and non-citizens voted; (e) that
convicted felons may have voted; (f) that the precinct board
made errors sufficient to change the result of the election;
and (g) that there was an error in the vote-counting programs
or summation of ballot counts.
At the April 19, 1997 hearing, Mr. Dornan narrowed the
allegations upon which his Notice was based to the following:
Non-citizens voting; and
Voting irregularities such as improper delivery of
absentee ballots, double voting and phantom voting.
In support of these allegations, Mr. Dornan submitted,
among other things, affidavits and witness statements,
statistical charts, newspaper accounts, and
correspondence.8
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\8\ Task Force for the Contested Election in the 46th Congressional
District of California: Hearings on the Merits, Contestant's Brief pp.
88-133.
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sanchez's response
Ms. Sanchez's Motion argued for dismissal of the election
contest on the following procedural grounds: 9 (a)
failure to exhaust state level remedies; (b) failure to plead
claim with particularity; (c) failure to make an actual claim
for the contested seat and; (d) failure to file Notice of
Contest within the time 10 prescribed by 2 U.S.C.
Sec. 382 (a).
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\9\ On March 12, 1997, Ms. Sanchez filed a Renewed Motion to
Dismiss Notice of Election Contest. Because the Committee had postponed
the disposition of Ms. Sanchez's original Motion, there was no need for
a Committee ruling on the Renewed Motion.
\10\ Ms. Sanchez alleges that the Notice of Contest was not timely
filed with the Clerk of the House on December 26, 1996. The Notice was
served on Ms. Sanchez on December 26, 1996 and a copy was provided to
the Clerk of the House on that same date. This filing is sufficient to
satisfy the notice requirements of 2 U.S.C. Sec. 382 (a).
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Ms. Sanchez also argued that Mr. Dornan failed to make
``credible allegations of irregularities of fraud which, if
subsequently proven true, would likely change the result of the
election.'' 11
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\11\ Anderson v. Rose, H. Rep. 104-852, 104th Cong., 2d Sess. 6
(1996) See also: (General arguments in pleadings are not sufficient)
(Duffy v. Mason, 48th Congress (1880), Hinds' 942). (Allegations that
are vague and uncertain as to particulars do not meet the requirement)
(see Gormley v. Goss, 73d Congress, 5th District of Connecticut, H.
Rep. 7-893 (1934); Chandler v. Burnham, 73 Congress 20th District of
California, H. Rept. 73-1278 (1934)). Allegation of fraud etc. in the
pleadings, sufficient to change the result of the election, should
disclose with particularity, what, when, where, how much and by whom
(see, Duffy v. Mason, supra; Public Law 91-138, section 3(b)) Wilson v.
Hinshaw, H. Rep. 94-761 94th Cong., 1st Sess. 3-4 (1975); Saunders v.
Kelly, H. Rep. 95-242, 95th Cong. 1st Sess. 3; Hendon v. Clarke, Comm.
H. Rep. No. 98-453, 98th Cong. 1st Sess. 4 (1983).
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Ms. Sanchez further argued that, where there is no
allegation how any illegal vote was actually cast, those
``votes [determined to actually be illegal] presumably would be
deducted proportionally from both candidates, according to the
entire vote returned for each.'' 12
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\12\ See, e.g., Macy v. Greenwood, H. Rep. 1599, 82nd Cong., 2d
Sess. (1952) reported in 2 Deschler's Precedents, Ch. 9, para. 56.4
(1977)). In her Motion to Dismiss (Appendix The Contestee suggests that
any invalid votes ought to be reduced in proportion to the vote tallies
of the candidates and thus that it would require 97,900 illegal votes
to render the true outcome of the election uncertain. However, it is
possible that all of the illegal votes may have been cast for the
Contestee and thus, if the number of illegal ballots is greater than
the margin, the true outcome of the election may be uncertain. It is
disturbing that an election in which over 90,000 illegal ballots have
been cast could be accepted as a legitimate measure of the will of the
people. See Appendix M.
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discovery provisions of the federal contested elections act
At its first meeting on Wednesday, February 26, 1997, the
Task Force had before it the pleadings filed by Mr. Dornan, his
Notice of Election Contest and Ms. Sanchez's Motion to Dismiss
and In The Alternative For A More Definite Statement. In
addition, the Task Force had received from Ms. Sanchez a
request that it withhold consideration of her motion and
conduct a hearing in Orange County ``as soon as practicable.''
In response to Ms. Sanchez's request and pursuant to FCEA
Sec. 383(d), a disposition of Ms. Sanchez's Motion to Dismiss
was postponed until a hearing on the merits could be conducted.
This represents the first time that the House has moved
forward with a hearing on the merits of an election contest
under the FCEA. This decision was based on the substantial and
credible allegations of fraud contained in Mr. Dornan's Notice.
These allegations were supported by independent investigations
being conducted by the California Secretary of State and the
Orange County District Attorney. As contemplated by the express
language of the statute, the postponement of decision on Ms.
Sanchez's Motion to Dismiss triggered the beginning of
discovery by Mr. Dornan.13
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\13\ 2 U.S.C. Sec. 383(d); Sec. 386.
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A careful review of the legislative history of the Act and
a comparison of the Act with other federal law supports the
decisions of the Task Force to permit discovery in this
election contest.
The House of Representatives passed the current FCEA in
1969 by an overwhelming bipartisan vote--only 12 Members voted
``no.'' 14 That Act, and prior laws upon which it
was based, dating back to 1851, specifically authorize parties
in an election contest to conduct discovery using
subpoenas.15 Subpoenas have long been used by
parties in election contests for this purpose. Hence, the
issuance of subpoenas pursuant to the FCEA is not an
``unprecedented'' step.
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\14\ Congressional Record, October 20, 1969; 30513-14.
\15\ See Appendix H.
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The manner in which Mr. Dornan proceeded, in obtaining
subpoenas from the federal district court and serving them upon
the respondents, is precisely the process contemplated by the
Act. The legislative history of the Act reveals that it was
enacted to revise the ``cumbersome, antiquated procedures'' of
the 1851 Act, its predecessor. The drafters of the Act intended
that its discovery provisions mirror more closely the Federal
Rules of Civil Procedure. One of the inadequacies of the 1851
Act cited by Congressman Kyl was that it gave ``no clear
authority for [a] contestant to take testimony if contestee
fails to answer the notice of contest.'' Congressman Ryan
opined that enactment of the FCEA would grant a contestant,
acting in accordance with the provisions of the Act, the
``right'' to initiate an election contest with the power of
subpoena.
Other laws contemplate the same type of delegation. For
instance, a law dealing with Congressional Task Force procedure
and investigations provides that a private party may request a
master in chancery, a judicial officer, to issue subpoenas for
any private claim against the United States that is pending
before a Congressional Task Force.16
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\16\ 2 U.S.C. Sec. 190(l).
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The Task Force record shows that the Democratic Minority
opposed holding a ``hearing on the merits'' because the hearing
would trigger the subpoena power authorized in the Act. The
Minority objected to the scheduling of a hearing on the merits,
even though Ms. Sanchez requested the hearing in Orange County.
The Minority sought immediate dismissal without any
investigation or hearing. This position comports with the
traditional Democratic reluctance to investigate vote fraud.
Since the passage of the Act in 1969, the House, under
Democratic control, did not permit a single contestant to
conduct discovery as contemplated in the Act.17
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\17\ This position was maintained even in the face of egregious
vote fraud such as in Wilson v. Leach, H. Rep. 96-784, 96th Cong., 2nd
Sess. (1980) (margin of 266 votes: 22 persons plead guilty to vote
buying; 58 persons admitted that they were paid to vote; the Contestant
produced ledger allegedly recording over 400 persons who sold their
vote in single precinct; press reported endemic system of massive vote
buying; the Contestee indicted for and acquitted of vote fraud--Motion
to Dismiss contest approved by the Democratic Majority of the Committee
on House Administration without any discovery or investigation.)
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A contested election Task Force should not allow a losing
candidate to proceed to discovery in a contest based on general
or disproven claims of fraud or irregularities. A contestant
must provide specific, credible allegations which would either
invalidate sufficient ballots to affect the result of the
election or would show the validity of the vote count to be
seriously suspect because certain precincts were contaminated
by fraud or other improper influences. In judging whether a
particular allegation is credible, a Task Force should consider
not only the Contestant's view and any supporting evidence, but
any countervailing arguments and evidence available from the
Contestee or other sources. Thus, the 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.
For the Democratic Minority to question the value of
discovery in this case reveals their insensitivity to the
threat of voter fraud. The criminal investigations of voter
fraud by the California Secretary of State and the District
Attorney of Orange County revealed that hundreds of individuals
registered to vote before becoming U.S. citizens and cast
illegal ballots. Proper subpoenas were necessary to help
determine whether these votes were an isolated instance of
fraud or part of a larger pattern. Unfortunately, the Task
Force investigation indicates a larger pattern of non-citizens
on the registration roles, a pattern the Minority's immediate
dismissal would have left undiscovered.
While the Democrats controlled Congress for forty years,
there was a consistent denial of access to facts, which
frustrated efforts to uncover possible vote fraud or
malfeasance in our electoral system. Citizens of the United
States have the right to be assured that their representatives
have been elected by lawful votes. The discovery procedures
provided for in the FCEA are similar in form to those provided
to civil litigants in virtually all courts across our nation.
The standard for judging a Motion to Dismiss that was
intended at the time of passage of the FCEA was applied to this
contest. A contestant must make credible allegations of
irregularities of fraud which, if subsequently proven true,
would likely change the outcome of the election. The
credibility element of the test allows for consideration of
evidence confirming or refuting allegations of election errors
or fraud, if such evidence is available. This Task Force also
recognized however, that the proof of election irregularities
or fraud may not be obtainable by a contestant who has not had
access to discovery. Contestants who cannot fully support their
credible allegations because the proof of their claims is in
the hands or minds of those who have committed the errors or
violations at issue 18 should not be penalized.
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\18\ The standard also recognizes the fact that Contestants may not
have had sufficient time to review election materials such as
registration lists, poll sheets, absentee ballot forms, etc. which
might form the basis of allegations of irregularities by the deadline
for filing a contest. In some cases, this problem might be due to the
unavailability of the materials, or their sheer volume.
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Republicans have consistently rejected the Democratic
position that the Contestant must be able to provide specific
preliminary proof of his or her case at the time of the filing
of the Notice of Contest in order to survive a Motion to
Dismiss 19 before any discovery can begin or before
a hearing on the merits can be set. The Democratic standard
incorrectly elevated the Motion to Dismiss stage to an
insurmountable barrier to all election contestants.
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\19\ See, e.g., 11 Rep. 244, 95th Cong., 1st Sess. Young v. Mikua
(1977). This standard was advocated by Democrats filing motions to
dismiss in 1995. See Contestee (Roses') Motion to Dismiss Contestant's
Notice of Election Contest, at 10 (filed Feb. 8, 1995); Contestee
Gejdenson's Motion to Dismiss the Election Contest, at 5 (filed Feb. 3,
1995).
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As stated previously to be allowed discovery, a contestant
must make, at a minimum, credible allegations which show either
that:
(1) more ballots were improperly cast than the margin
of victory; or
(2) because of contaminating factors such as bribery,
harassment of voters, corruption of officials, etc., in
certain precinct(s), the credibility of the vote total
is irreparably damaged.
If a Contestant is eventually successful in establishing
convincing evidence of irregularities or fraud, the Task Force
could order remedies, including proportional deduction of
improper ballots,20 exclusion of contaminated
precincts,21 or ordering a new
election.22 The appropriate remedy depends upon two
tests whether the allegations are proven and how crucial they
were to the apparent victory.
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\20\ The House's precedents allow for deletion of improper ballots
by proportional deduction. This ``general rule in the House for
deduction of illegal votes where it is impossible to determine for
which candidate they were counted'' requires reducing the total vote
count in affected precincts in proportion to the percentage of votes
received by each candidate in each precinct to eliminate the improper
ballots from the vote count. See H. Rep. 513, 87th Cong. 1st Sess.
Roush or Chambers, at 56 (1961); see also Deschler's Precedents Sec. 57
(H. Rep. 2482, 85th Cong. 1st Sess., Oliver v. Hale (1958), Sec. 564
(H. Rep. 1599, 82nd Cong., 2nd Sess., Macy v. Greenwood (1952), Ch 9
App. Deschler's Precedents Sec. 54 at 828 (H. Rep. 1450, 69th Cong.,
1st Sess. Bailey v. Walters (1926), Sec. 32 (H. Rep. 224, 68th Cong.,
1st Sess. Chandler v. Bloom (1924)), Sec. 36 at 770-71 (H. Rep. 1101,
67th Cong., 4th Sess. Paul v. Harrison (1922)), Sec. 27 at 744-45 (H.
Rep. 1325, 66th Cong. 3d Sess, Farr v. McLane (1921)), Sec. 14 at 681
(H. Reo. 839, 65th Cong., 3rd Sess. Wickersham v. Salzere (1919)), at
Sec. 26 at 74 (H. Rep. 1319, 66th Cong., 1st Sess., Wickersham c.
Salzer and Grugsby (1919), Chester H. Rowell, A. Historical and Legal
Digest of all the Contested Election Cases of the House of
Representatives from the First to the Fifty Sixth Congress (1901), at
368 (47th Cong., Bisbee v. Finley (1881)), at 318 (44th Cong., Platt v.
Goode (1875)), at 305 (44th Cong., Finley v. Walls (1875)).
\21\ See, e.g. Ch. 9 App. Deschler's Precedents Sec. 74 at 877 (H.
Rep. 1901 Part 2, 71st Cong., 2d Sess., Hill v. Palmosano (1930)),
Sec. 54 at 820 (H. Rep. 1450, 69th Cong., 1st Sess. Bailey v. Walters
(1926)), Sec. 42 at 784 (H. Rep. 224, 68th Cong., 1st Sess., Chandler
v. Bloom (1924)); id. Sec. 3.6 at 770 (H. Reo. 1101, 67th Cong., 4th
Sess. Paul v. Harrison (1922)), Sec. 2.7 at 744 (H. Rep. 1325, 66th
Cong., 3d Sess., Farr v. McLasne (1921)); Sec. 2.4 at 717 (H. Rep.
9612, 66th Cong., 2d Sess., Safts or Major (1920)), at Sec. 21 at 696
(H. Reo. 375, 66th Cong., 1st Sess., Tague v. Fitzgerald (1919) (Citing
Gill v. Catlin, 62nd Cong., Connell v. Howell, 58th Cong., Horton v.
Butler, 57th Cong., Wagner v. Butler, 57th Cong., and Easton v. Scott,
14th Cong.)), H. Rep. 626, 92nd Cong, 1st Sess. Tunno v. Veysey (1971)
at 4 (internal citation deleted).
\22\ An entirely new election is proper if the contamination of
votes makes the winner of the election impossible to determine.
``Declaring a vacancy in the seat is one of the options available to
the House of Representatives and is generally exercised when the House
decides that the contestant, while has failed to justify his claim to
the seat, has succeeded in so impeaching the returns that the House
believes that the only alternative available to determine the will of
the electorate is to hold a new election.'' H. Rep. 626, 92nd Cong.,
1st Sess., Tunno v. Veysey at 11 (internal citations omitted), see also
Deschler's Precedents Ch. 9 Sec. 49.1 at 509 H. Reo. 2255, 83rd Cong.,
3d Sess. Ray v. Jenks (1938)), Sec. 4714 at 495 (H. Rep. 334 73rd
Cong., 2nd Sess. Kemp, Sanders Investigation (1934)).
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The language regarding the Motion to Dismiss in the FCEA
and the statute's legislative history clearly indicate that the
legislation was meant to install a procedural framework without
changing substantive precedent of the House. In the past, the
House had normally reviewed the pleadings and available
evidence to determine whether there were sufficient grounds to
allow further investigation. As a comparison with normal civil
litigation, therefore, the House utilized a standard blending
of Rules 12(b)(6) and 56 of the Federal Rules of Civil
Procedure.
In fact, the FCEA rule allowing a Motion to Dismiss itself
was designed and modeled on rule 12(b)(6) of the Federal Rules
of Civil Procedure which govern actions in federal court. This
rule allows for dismissal of a case before discovery where the
plaintiff cannot sustain a legal claim even if every factual
allegation and inference, contended by the plaintiff, were
true: the claimant is not required to provide convincing
evidence in the form of documents and/or affidavits. The
legislative history indicates the FCEA's supporters believed
the language establishing the Motion to Dismiss was meant to
give the defending party a procedural right similar to the
demurrer, the common law equivalent of Rule 12(b)(6). Since the
FCEA was only a procedural reform, it did not alter the ability
of the Committee to consider available evidence in deciding
whether a contest deserved further consideration.
The FCEA's legislative history proves that the Act was not
designed to alter the substantive grounds which a contestant
must prove to overturn the certified results of a congressional
election, a burden which has been and remains extremely high.
Rather, as noted by then Chairman, Subcommittee on Elections,
Democratic Rep. Abbitt:
* * * [T]his bill does not set out any substantive
grounds for upsetting an election such as fraud or
other irregularities. It is strictly limited to
prescribing a procedural framework for the prosecution,
defense and disposition of contested-election cases
patterned upon the Federal rules of civil procedure
used for more than 20 years in our U.S. district
courts.23
---------------------------------------------------------------------------
\23\ 115 part 22 Cong. Rec. 30510 (1969).
Rep. Kyl echoed these sentiments: ``The procedures [the Act]
contains for pleadings, taking testimony and briefing a case
are patterned roughly after the Federal Rules of Civil
Procedure.'' Id. This conclusion was also reflected in the
---------------------------------------------------------------------------
House report on the Act:
The purpose of these changes is to bring the
procedure into closer conformity with the Federal Rules
of Civil Procedure upon which the contested election
procedures prescribed in H.R. 14195 are based * * *
Historical experience with the existing law has
demonstrated its inadequacies, among which are the
following: * * * There is no procedure for challenging
the legal sufficiency of the notice of contest by a
motion in the nature of a demurrer.24
\24\ H. Rep. 569, Federal Contested Election Act, 91st Cong., 1st
Sess., at 3 (1969) See also id. at 4 (``the bill is patterned upon the
Federal Rules of Civil Procedure used for more than 20 years in the
Federal Courts.''); 115 part 22 Cong. Rec. 30510 (1969) (remarks of
Rep. Kyl) (remarking on need for procedure similar to demurrer). In
affording a contestee the opportunity to present a ``failure to state a
claim'' defense before serving an answer, the FCEA mirrors Rule
12(b)(6) which allows a defendant to assert ``failure to state a claim
upon which relief can be granted[.]'' This similarity is not surprising
because the language and structure of 2 U.S.C. Sec. 83 are copied
directly from Rule 12 of the federal rules. For purposes of a Rule
12(b)(6) motion, all well-pleaded allegations are presumed true, all
doubts and inferences are resolved in the pleader's favor, and the
pleading is viewed in the light most favorable to the pleader. See,
e.g., Albright v. Oliver, 114 S. Ct. 807, 810 (1994); Markowitz v.
Northeast Land Co., 906 F.2d 100, 103, (3d Cir. 1990).
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The reasons why the Committee has and should demand more
than mere allegations as a court would require at summary
judgment, are more complex. Normally a claim in federal or
state court would be dismissed on summary judgment only after
the party against whom dismissal was sought had an opportunity
to gather evidence through the discovery process. However,
under the FCEA, for a contestant to reach such discovery, a
Motion to Dismiss must be rejected or postponed to a Hearing on
the Merits. In order to keep frivolous cases from reaching
discovery, the Committee standard incorporates the component of
credibility into the review of a contestant's allegations
similar to the standard a judge would utilize in viewing the
evidence at issue in a Rule 56 motion for summary
judgment.25 Thus, because of the peculiarities of
the contested election process and the important concern that
only substantive challenges be permitted discovery, the proper
standard is a blend of Rules 12(b)(6) and 56.
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\25\ Also, the federal rules provide that a judge may deny or
continue a motion for summary judgment if the party facing the motion
certifies that certain evidence is not obtainable. Fed. R. Civ. P.
56(f). Of course, normally by this stage in litigation a party would
have an opportunity to take discovery. In the contested election
context, recognition that evidence may be beyond the grasp of a
contestant is even more appropriate.
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In comparison, when evidence was reviewed under the
standard used by Democrats for the FCEA Motion to Dismiss, such
consideration amounted to a Trial on the Merits without any
fact finding. Using this summary judgment standard when the
contestant had not been allowed discovery made winning contests
virtually impossible.
Consistent with the Republican position since the enactment of the FCEA
In every case under the FCEA where a Contestant made
credible allegations of election irregularities or fraud which
could have affected the result of the election, Republicans
have urged use of this standard. For example, in the 1977 case
of Paul v. Gammage, the Republicans noted:
[T]he only burden cast upon the contestant is to
``state'' with particularity the grounds of his
contest, not to ``prove'' them. * * * It would be the
grossest of discretion to deprive a contestant of the
opportunity to present evidence in support of his claim
for the only reason that he failed to plead his case
with particularity.
* * * Our statute is new. Early precedents will set
the tone for disposition of later cases. It is
essential, therefore, that the misapplication of the
burden in deciding Motions to Dismiss be corrected
now.26
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\26\ H. Rep. 243, 95th Cong., 1st Sess. at 7, 9 (dissenting views).
Similarly, in Young v. Mikva, a dissenting Republican
recommended that a ``motion to dismiss a contest will be
granted unless the contestant has made allegations sufficient
to justify the Committee's conclusion that grounds have been
presented which if proven would change the result of the
election.'' 27 The same standard was proposed by
Republicans in the case of Wilson v. Leach in 1980: ``if the
contestant has stated grounds sufficient to change the results
of the election, the Committee must deny the motion to dismiss
and proceed with the case. The contestant does not have to
prove those allegations beyond a reasonable doubt to quash the
motion.'' 28 Republicans also dissented against the
dismissal of the cases of Hendon v. Clarke in 1983 and Hansen
v. Stallings in 1985 where persuasive allegations of irregular
vote countings were plead properly.29
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\27\ H. Rep., 244, 95th Cong., 1st Sess., at 9 (1977) (minority
views of Rep. Dave Stockman).
\28\ H. Rep. 784, 96th Cong., 2d Sess., at 5 (minority views).
\29\ H. Rep. 453, 98th Cong., 1st Sess. at 9 (dissenting views); H.
Rep. 290, 99th Cong., 1st Sess., at 10 (minority views).
---------------------------------------------------------------------------
The Republicans consistently rejected the Democratic
standard which shifted the burden of proof to the contestant,
even before the contestant had an opportunity for discovery.
They remarked in Paul v. Gammage:
The panel concluded that the mere filing of a motion
to dismiss casts upon the respondent the burden of
proving his case at the time the motion is heard.
Such a unique shifting of the burden not only
reverses completely the established burden cast upon
the moving party in the analogous situation of a motion
for summary judgment, but is particularly inappropriate
under our contested election statute.30
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\30\ H. Rep. 243, 95th Cong., 1st Sess., at 8 (dissenting views).
The reason why such burden-shifting is inappropriate was
explained in Republican views filed in Young v. Mikva in 1977.
Since irregularities and fraudulent activity may be difficult
to uncover through private investigation especially in cases
where those committing the mistakes or violations are in
control of the probative evidence and information, contestees
need access to the FCEA's discovery mechanisms to uncover the
evidence supporting credible allegations of irregularities or
---------------------------------------------------------------------------
fraud:
The contestant should be allowed the opportunity to
have access to the material he needs to present his
case either through action of the courts or this
Committee pursuant to the Federal Contested Election
Act. To do otherwise renders the Procedures of the
Federal Contested Election Act a mockery and
establishes a veritable ``Catch 22''
precedent.31
---------------------------------------------------------------------------
\31\ H. Rep. 244, 95th Cong., 1st Sess., at 9 (1977) (minority
views of Rep. Dave Stockman).
Republicans have been unwavering in their advocacy of this
standard. Thus, in the case of Saunders v. Kelly in 1977, where
a Republican winner was challenged by a defeated Democratic
candidate, the separate views of the minority Republicans
rejected the Democratic position that Saunders' contest should
be dismissed because she failed to provide documentary proof of
her allegations.32
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\32\ H. Rep. 242, 95th Cong., 1st Sess., at 5 (separate views).
---------------------------------------------------------------------------
Of course, on numerous occasions where the allegations made
in a contest were either vague, improbable on their face, or
insufficient even if true to place the election result in
doubt, Republicans have supported dismissals. In Pierce v.
Pursell, the Republicans noted:
In the instant case, Mr. Pierce is unable to allege
any specific irregularities justifying the conclusion
that the result of the election was in error * * *
The present case is to be distinguished from Young v.
Mikva where specific ballot errors in an amount
sufficient to change the result of the election were
affirmatively alleged by the contestant.33
---------------------------------------------------------------------------
\33\ H. Rep. 245, 95th Cong., 1st Sess., at 4 (supplemental views).
In conclusion, the standard for setting a hearing on the
merits thus permitting discovery under the FCEA applied in this
case is consistent with the language of the statute, the FCEA's
legislative history, analogy to court practice, the House's
precedents, and common sense. Just as importantly, it will
bolster the integrity of our electoral system by allowing
illegal and improper acts to be publicized and deterred, and by
ensuring that elections are decided only by legal votes.
Discovery Under the Federal Contested Elections Act
While the discovery provisions of the FCEA are sound in
theory, in practice the provisions created an unworkable
structure. Due to obstructionist behavior on the part of
various persons and entities subpoenaed, a failure on the part
of the Department of Justice to enforce the subpoenas as
contemplated under the FCEA,34 and the inability of
the Contestant to subpoena the INS, discovery by the Contestant
was generally ineffective in providing useful information to
this Task Force.
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\34\ See Appendix G
---------------------------------------------------------------------------
On February 13, 1997, Mr. Dornan issued over 50 subpoenas,
signed by U.S. Magistrate Elgin Edwards in the U.S. District
Court in Santa Ana, California. On February 28, 1997 U.S.
Magistrate Edwards denied the Contestee's challenge to the
validity of the subpoenas issued on February 13, 1997. On March
9, 1997, U.S. District Court Judge Gary L. Taylor, Central
District of California, recalled the subpoenas issued by the
Magistrate because they were irregular on their face in several
respects and thus not as authorized by the FCEA.35
Judge Taylor ordered that any future FCEA subpoenas would be
issued by the District Court.36
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\35\ In the Matter of the Contested Election of Loretta Sanchez to
the House of Representatives of the United States Congress; Robert K.
Dornan, Contestant, vs. Loretta Sanchez, Contestee, 955 F. Supp. 1210,
1212 (1997).
\36\ Id. at 1212.
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On March 10, 1997, Mr. Dornan's period for discovery
officially began under the FCEA. He was granted subpoena power
as part of his discovery process. On March 18, 1997, Mr. Dornan
issued 24 subpoenas signed by Judge Gary L. Taylor. On March
28, 1997, Mr. Dornan issued seven more subpoenas, including one
to Ms. Sanchez. Finally, on May 20, 1997 the Contestant issued
13 additional subpoenas signed by Judge Gary L. Taylor.
On April 9, 1997, Mr. Dornan's discovery period ended and
Ms. Sanchez's period began. On April 16, 1997, the Committee
met to consider motions to quash or modify subpoenas filed by
entities to which Mr. Dornan issued subpoenas.37 The
Committee held in abeyance 16 subpoenas pending a further
showing of relevance by Mr. Dornan.38 The Committee
also voted to issue letters to five entities stating that the
documents subpoenaed must be produced within 15
days.39 The Committee also approved the text of
three protective orders that specify the terms of production
and custody of documents produced under subpoena.40
These strict protective orders were designed to protect the
legitimate privacy interests of those organizations and
individuals subpoenaed by the Contestant. On May 9, 1997 the
discovery period ended for the Contestee. Throughout her time
for discovery, the Contestee issued no subpoenas.
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\37\ See Appendix K.
\38\ These entities were the U.S. District Court Naturalization
Division, Immigration and Naturalization Service, Laborers Union 652,
Carpenters Union 803, Carpenters Union 2361, the Guttenberg Group,
Citizen's Forum, Lou Correa for State Assembly, Active Citizenship
Campaign, Communication Workers Local 9510, Hermandad Mexicana Nacional
Sales and Marketing, Rancho Santiago College Orange Campus, Centennial
Education Center, Orange Adult Learning Center, and Garden Grove
Center.
\39\ These five entities were Catholic Charities, Dump Dornan
Committee, Sanchez for Congress, Hermandad Mexicana Nacional, Hermandad
Mexicana Nacional Legal Center.
\40\ See Appendix K.
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On May 21, 1997 the Committee met to decide on outstanding
motions to quash or modify subpoenas initiated by the
Contestant.41 The Committee voted to hold two
subpoenas in abeyance.42 The Committee denied
motions to quash from Lou Correa for State Assembly, Dump
Dornan, Guttenberg Group, Southwest Voter Registration Project,
and One Stop Immigration and Education Center.
---------------------------------------------------------------------------
\41\ The Committee voted to quash seven subpoenas. The quashed
subpoenas were Southern California Edison, Southern California Gas,
Garden Grove Water Department, Communications Workers of America, Labor
Union Local 652, United States District Court, and the INS.
\42\ The subpoenas were Carpenters Local 803/2361 and Rancho
Santiago Community College.
---------------------------------------------------------------------------
On September 24, 1997 the Committee met to vote on three CA
46 issues. First the Committee voted on motions to quash or
modify subpoenas issued by the Contestant. The Committee voted
to quash subpoenas issued to Loretta Sanchez, Rancho Santiago
College, Naturalization Assistance Service, Carpenters Local
803/2361, and R. Scott Moxley.43 The Committee voted
to modify and enforce subpoenas issued to Nativo Lopez, Michael
Farber, and Active Citizenship Campaign.44 The
Committee voted to pass a House Resolution urging the Office of
the United States Attorney for the Central District of
California to file criminal charges against Hermandad Mexicana
Nacional for failure to comply with a valid subpoena under the
Federal Contested Elections Act. Finally, the Committee voted
to authorize the issuance of interrogatories. On October 1,
1997 the Committee issued interrogatories to Robert K. Dornan,
Michael Farber, Loretta Sanchez, Wylie Aitken, John Shallman,
Benny Hernandez, Nativo Lopez, CA Secretary of State Bill
Jones, and Orange County District Attorney Michael
Capizzi.45
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\43\ The Contestant had applied for and served the subpoena to Mr.
Moxley outside of the 30 day discovery period. A Contestant or
Contestee must initiate their discovery with respect to a particular
party within the initial periods prescribed by the FCEA.
\44\ In contrast to the subpoena directed to Mr. Moxley, the
subpoenas to Mr. Farber, Mr. Lopez and Active Citizenship Campaign were
applied for within the initial discovery window and a good-faith effort
at service was attempted although not perfected until after the passing
of the initial discovery period.
\45\ See Appendix D.
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Because of the refusal of numerous witnesses and entities
to comply with subpoenas issued by Mr. Dornan and the refusal
of the INS to comply with numerous requests from the Committee
and California election officials to provide citizenship data
on individuals, the Committee was required to issue its own
subpoenas and undertake a larger role in the
investigation.46 On May 14, 1997 the Committee
issued two subpoenas to the INS. 47 The first
subpoena requested that the INS perform a match of documented
aliens in their databases with the list of individuals who
registered to vote in Orange County prior to the November 1996
election. The second subpoena requested that the INS provide to
the Committee copies of relevant INS databases.48
---------------------------------------------------------------------------
\46\ See Appendix I.
\47\ See Appendix E.
\48\ The INS eventually complied with the Committee's subpoena,
providing numerous databases, which were compared to Orange County
voter registration records.
---------------------------------------------------------------------------
The refusal of many witnesses to comply also caused Mr.
Dornan to seek relief by way of a criminal complaint, as is
contemplated by the FCEA.49 On May 19, 1997 the
Contestant filed a criminal complaint against Hermandad
Mexicana Nacional with the U.S. Attorney in Los Angeles. The
criminal complaint requested that the U.S. attorney prosecute
Hermandad Mexicana Nacional for failure to comply with FCEA
subpoenas. On June 23, 1997 the Committee wrote a letter to the
U.S. Attorney's office requesting that they act on a criminal
complaint filed by the Contestant. On June 30, 1997 the
Committee again wrote to the Deputy Attorney General of the
United States to request that the Department of Justice advise
the Committee of the status of the criminal complaint filed by
the Contestant. On September 30, 1997 the House of
Representatives passed House Resolution 244, Demanding that the
Office of the United States Attorney for the Central District
of California file criminal charges against Hermandad Mexicana
Nacional for failure to comply with a valid subpoena under the
Federal Contested Elections Act.50 Despite the
Committee's efforts, the Department of Justice refused to
enforce the subpoenas.
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\49\ See Appendix G.
\50\ See Appendix H.
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The Investigation Conducted by the Task Force
Throughout this election contest, the Task Force has sought
to allow the Contestant and the Contestee to exercise the
discovery process provided for in the Federal Contested
Elections Act. However, the Contestee and third-parties, such
as Hermandad Mexicana Nacional, have not only refused to comply
with the provisions of the statute, but have also engaged in
lengthy litigation challenging the Constitutionality of the
statute. Although the Majority's position in this litigation
has ultimately been vindicated,51 the delays and
obstruction of the Contestee and third-parties forced the Task
Force to pursue its own investigation of voting
irregularities.52
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\51\ In the Matter of the Contested Election of Loretta Sanchez to
the House of Representatives of the United States Congress; Robert K.
Dornan, Contestant, v. Loretta Sanchez, Contestee, 978 F. Supp. 1315
(1997). See Appendix I.
\52\ See Appendix B.
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In addition, the credible allegation by the Contestant that
aliens voted in the election created a conflict with the
privacy rights of persons in the INS's databases. As the
Department of Justice wrote in their motion to quash the
Contestant's FCEA subpoena: ``Under the Privacy Act of 1974, 5
U.S.C. Sec. 552a(b), as amended, no agency shall disclose any
record which is contained in a system of records by any means
of communication to any person except by the prior written
consent of the individual to whom the records pertains, unless
one of a series of exceptions applies.53 The Act
applies to records maintained in a system of records by a
federal agency that are retrieved by `the name or other
identifying information' of the individual.54 An
individual, for purposes of the act, is defined as `a citizen
of the United States or an alien lawfully admitted for
permanent residence.' 55 By specifically requesting
`identifying information' the Contestant seeks the production
of that which is specifically prohibited.'' 56
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\53\ 5 U.S.C. Sec. 522(b)(1-12).
\54\ 5 U.S.C. Sec. 522a(a) & 522(f).
\55\ 5 U.S.C. Sec. 522a(a)(2).
\56\ Motion of the Immigration and Naturalization Service and the
Custodian of Records, United States District Court for the Central
District of California, To Quash Contestant's Subpoena. April 16, 1997.
Page 3.
---------------------------------------------------------------------------
The Justice Department's analysis of the Privacy Act is
correct. Accordingly, the Committee quashed the Contestant's
subpoena to the Immigration and Naturalization Service at the
Committee Meeting of May 21, 1997.
However, the Task Force could not ignore the credible
allegations proffered by the Contestant. Therefore, the Task
Force undertook its own investigation, utilizing data
subpoenaed from the INS. The Privacy Act specifically exempts
``either House of Congress, or to the extent of matter within
its jurisdiction 57 any Task Force or subcommittee
thereof * * *.'' 58 Throughout this investigation
the Task Force has been conscious of its responsibility to
respect the privacy of every individual related to this
investigation and has scrupulously guarded the information in
its possession.59
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\57\ Committee on House Oversight jurisdiction is defined by House
Rule X(1)(b).
\58\ 5 U.S.C. Sec. 522(b)(9).
\59\ The Contestee has not shared this commitment to privacy
rights. In a letter dated November 11, 1997 the Contestee's attorneys
attempted to compel the Orange County Registrar of Voters to publicly
disclose, pursuant to the California Public Records Act, Cal. Govt.
Code Sec. 6250 et seq, a preliminary list of potential matches. Such a
disclosure would have irreparably violated the privacy of hundreds of
innocent people. Fortunately, the Committee intervened to protect the
privacy of the persons affected.
---------------------------------------------------------------------------
After a careful comparison between the Orange County voter
registration files and INS databases the Task Force was able to
clearly and convincingly document that 624 persons had
illegally registered and thus were not eligible to cast ballots
in the November 1996 election.60 In addition, the
Task Force discovered 196 instances where there is a
circumstantial indication that a voter registered
illegally.61 Further, the Orange County Registrar of
voters voided 124 improper absentee ballots.62 In
total, the Task Force found clear and convincing evidence that
748 invalid votes were cast in this election.
---------------------------------------------------------------------------
\60\ See Appendix C.
\61\ See Appendix C.
\62\ See Appendix C.
---------------------------------------------------------------------------
The question of how many aliens are registered and voting
in the Forty-sixth Congressional District has not been resolved
by this Task Force investigation. The investigation of this
contest has confirmed that there is a significant number of
aliens who appear within the INS data bases and are on the
voter registration rolls of Orange County. This fact leads
logically to a serious question and a troubling hypothesis: if
there is a significant number of ``documented aliens'', aliens
in INS records, on the Orange County voter registration rolls,
how many illegal or undocumented aliens may be registered to
vote in Orange County? The Task Force can make no conclusion
based on the materials before it as to the number of illegal
aliens who may be on Orange County registration rolls. The Task
Force does not have available to it clear and convincing
evidence on the number of undocumented aliens who may be
registered voters in Orange County.
Only clear and convincing evidence can provide the basis to
overcome the presumption of the legitimacy of the electoral
process. Absent such evidence, the California certification of
the election results in the 46th Congressional District must be
confirmed by this House. However, the confirmation of this
election result by the House is not an unequivocal validation
of the voting process in Orange County.
In conclusion, had the Task Force and Committee not acted
to consider the merits of this contest, significant vote fraud
and vote irregularities would have gone undetected. However,
the number of ballots for which the Task Force and Committee
has clear and convincing evidence that they were cast
improperly by individuals not eligible to vote in the November
1996 election is substantially less than the 979 vote margin in
this election.
For the foregoing reasons, the Committee concludes that
this contest should be dismissed.
APPENDIX A: CHRONOLOGY
Contested Election in the 46th Congressional District of California
CHRONOLOGY
November, 1996
5th--Federal, state and local elections were held
nationwide. In the 46th Congressional District of California
incumbent Robert K. Dornan (R) was challenged by Loretta
Sanchez (D).
6th--Bob Dornan was ahead by 233 votes but 12,000 absentee
and provisional ballots were still uncounted.
9th--The Committee on House Oversight (hereafter ``the
Committee'') sent observers to the Orange County Registrar of
Voters to monitor the counting of the outstanding votes.
13th--The Associated Press called Loretta Sanchez the
winner when she moved ahead by 929 votes with 3,000 ballots
left outstanding. The following day Robert Dornan called for a
recount of all votes.
22nd--All votes were counted once and the Registrar of
Voters declared Sanchez the winner by 984 votes.
December, 1996
4th--The California Secretary of State announced that his
office was opening an investigation of possible voter fraud in
the 46th Congressional District. The Orange County District
Attorney also announced that he would similarly investigate the
results of the election based on allegations of voter fraud.
9th--The Committee sent additional observers to Orange
County to observe the recount procedures. The recount resulted
in a five vote pick-up for Robert Dornan, leaving the final
margin of defeat at 979 votes.
26th--Robert Dornan (hereafter ``the Contestant'') filed a
Notice of Contest with the Committee announcing his intention
to contest the results of the election.
January, 1997
7th--Loretta Sanchez (hereafter ``the Contestee'') was
sworn in as a Member of the 105th Congress.
8th--The Committee met and formed the Task Force for the
Contested Election in the 46th Congressional District of
California (hereafter ``the Task Force''). Two of the three
Task Force members were appointed. The Honorable Vernon Ehlers
(R-MI, Chairman), and the Honorable Bob Ney (R-OH) were
appointed by Committee Chairman Bill Thomas. At this time the
Ranking Minority Member on the Committee did not have a
recommendation to fill the third (Democratic) position on the
Task Force.
14th--The Orange County District Attorney and the CA
Secretary of State conducted a raid, under search warrant, of
Hermandad Mexicana Nacional, a Latino community service
organization. The Contestant alleged to both the District
Attorney and the Secretary of State that Hermandad Mexicana
Nacional was at the center of an effort to register and
encourage non-citizens to vote in the 1996 elections. The Los
Angeles District Office of the Immigration and Naturalization
Service agreed to assist the California Secretary of State in
identifying non-citizens who may have voted.
31st--The Contestee filed a Motion to Dismiss Notice of
Election Contest or, in the Alternative, For a More Definite
Statement.
February, 1997
10th--The Contestant submitted an Opposition to Motion to
Dismiss or, in the Alternative, Response to Motion for a More
Definite Statement detailing his allegations of voter fraud.
11th--The Committee met and appointed the third member to
the Task Force, the Honorable Steny Hoyer (D-MD).
12th--The Task Force received a letter from the Contestee
requesting that the Task Force ``withhold consideration of my
motion'' until the Task Force conducts a field hearing in
Orange County, CA.
13th--The Contestant issued over 50 subpoenas, signed by
U.S. Magistrate Elgin Edwards in the U.S. District Court in
Santa Ana.
26th--The Task Force met and voted to postpone the
disposition of the Contestee's Motion to Dismiss until after a
Hearing on the Merits. At the meeting, Chairman Ehlers
acknowledged the request from the Contestee regarding a field
hearing and recommended that the request be granted.
28th--U.S. Magistrate Edwards ruled that subpoenas issued
by the Contestant are legitimate.
March 1997
9th--U.S. District Court Judge Gary L. Taylor, Central
District of California, revoked some subpoenas issued by the
Contestant citing that the subpoenas may be issued for
depositions but not documents exclusively.
10th--The Contestant's period for discovery officially
began under the Federal Contested Elections Act. He was granted
subpoena power as part of his discovery process.
12th--The Contestee filed a Renewed Motion to Dismiss
Notice of Election Contest with the Committee.
14th--California Secretary of State Bill Jones requested
that the INS analyze the entire Orange County voter
registration list.
17th--Richard Rogers, INS Los Angeles District Director
agreed to analyze the information requested by the Secretary of
State.
18th--The Contestant issued 24 subpoenas signed by Judge
Gary L. Taylor.
28th--The Contestant issued seven more subpoenas, including
one to the Contestee.
April 1997
9th--The Contestant's discovery period ended and the
Contestee's began.
9th--The California Secretary of State announced that an
INS analysis of 1,100 persons enrolled in Hermandad citizenship
classes had discovered 490 documented non-citizens who
registered to vote in CA 46. Of these, 303 actually voted
illegally in CA 46, and 69 individuals had no record in INS
files.
10th--The Contestant filed a Motion to Enlarge Time to Take
Testimony and for Production of Documents.
15th--The Contestant filed a Motion to Compel Compliance
With Subpoenas Regarding Depositions to Release Documents
Submitted Under Seal.
16th--The full Committee met to consider motions to quash
or modify subpoenas filed by entities to which theContestant
issued subpoenas. The Committee held in abeyance 16 subpoenas pending a
further showing of relevance by the Contestant. These entities were the
U.S. District Court Naturalization Division, Immigration and
Naturalization Service, Laborers Union 652, Carpenters Union 803,
Carpenters Union 2361, the Guttenberg Group, Citizen's Forum, Lou
Correa for State Assembly, Active Citizenship Campaign, Communication
Workers Local 9510, Hermandad Mexicana Nacional Sales and Marketing,
Rancho Santiago College Orange Campus, Centennial Education Center,
Orange Adult Learning Center, and Garden Grove Center. The Committee
also voted to issue letters to five entities stating that the documents
subpoenaed must be produced within 15 days. These five entities were
Catholic Charities, Dump Dornan Committee, Sanchez for Congress,
Hermandad Mexicana Nacional, Hermandad Mexicana Nacional Legal Center.
The Committee also approved the text of three protective orders that
specify the terms of production and custody of documents produced under
subpoena.
18th--The Committee issued letters to all parties whose
motions were resolved at the April 16, 1997 Committee meeting.
17th--The Contestant submitted Field Hearing Testimony in
Support of Notice of Contest to the Committee.
19th--The Task Force held a field hearing in Santa Ana, CA.
At the hearing, the Task Force heard testimony from the CA
Secretary of State, the Orange County District Attorney, the
Orange County Registrar of Voters, and the INS Los Angeles
District Director. The Contestant and the Contestee also
testified and called witnesses to testify before the Task
Force.
24th--The Committee sent a request to the INS headquarters
in Washington, D.C. asking that they perform a comparison of
the Orange County voter list and several INS databases.
28th--The Contestant filed an Application for Extension of
Time within Which to Respond to the Committee's Request for
Further Information.
29th--The Orange County Registrar of Voters notified the
Committee that she had identified 98 improper absentee ballots.
30th--The Contestee submitted Closing Field Hearing
Testimony in Support of Motion to Dismiss to the Committee.
May 1997
1st--Hermandad Mexicana Nacional and the Committee for
Loretta Sanchez failed to produce documents as required by the
Contestant's subpoenas that were upheld by the Committee.
1st--The Contestant submitted Response to the Committee on
House Oversight's Request For Further Information Regarding
Subpoenas.
1st--The INS writes to CHO requesting two additional weeks
to determine the extent to which the INS will be able to comply
with the Committee's April 24, 1997 request.
2nd--The Contestant filed a Response to the Committee's
Request for Further Information Regarding Subpoenas.
5th--Chairman Bill Thomas held a press conference to
announce that the INS had failed to cooperate with numerous
requests for assistance in reviewing the citizenship status of
CA 46 voters.
9th--The discovery period ended for the Contestee.
Throughout her time for discovery, the Contestee issued no
subpoenas.
14th--The Committee issued two subpoenas to the INS. The
first subpoena requested that the INS perform a match of
documented aliens in their databases with the list of
individuals who registered to vote in Orange County prior to
the November 1996 election. The second subpoena requested that
the INS provide to the Committee copies of relevant INS
databases.
19th--The Contestant filed a criminal complaint against
Hermandad Mexicana Nacional with the U.S. Attorney in Los
Angeles. The criminal complaint requested that the U.S.
attorney prosecute Hermandad Mexicana Nacional for failure to
comply with FCEA subpoenas.
20th--The Contestant issued 13 additional subpoenas signed
by judge Gary L. Taylor.
21st--The Committee received the results of the matches of
last name and date-of-birth between INS records and the Orange
County voter registration list. The match identified over
500,000 individuals registered in Orange County and
approximately 136,000 individuals in the 46th Congressional
District. This constituted partial compliance with the
Committee's subpoena.
21st--The Committee met to decide on outstanding motions to
quash or modify subpoenas initiated by the Contestant. The
Committee voted to quash seven subpoenas. The quashed subpoenas
were Southern California Edison, Southern California Gas,
Garden Grove Water Department, Communications Workers of
America, Labor Union Local 652, United States District court,
and the INS. The Committee voted to hold two subpoenas in
abeyance. The subpoenas were Carpenters Local 803/2361 and
Rancho Santiago Community College. The Committee denied motions
to quash from Lou Correa for State Assembly, Dump Dornan,
Guttenburg Group, Southwest Voter Registration Project, and One
Stop Immigration and Education Center. The Committee set a
production deadline of June 5, 1997.
22nd--The Committee issued letters to all parties whose
motions were resolved at the May 21, 1997 Committee meeting.
29th--The INS informed the Committee that 19,000
individuals in INS databases matched the first name, last name,
and date-of-birth of individuals registered to vote in CA 46.
Of those 19,000 approximately 4,023 were registered to vote in
the 46th Congressional District.
June 1997
3rd--Committee staff met with INS staff to discuss
compliance with Congressional subpoenas and future cooperation
on projects such as paper file reviews.
5th--Lou Correa for State Assembly, Dump Dornan, Guttenburg
Group, Southwest Voter Registration Project, and One Stop
Immigration and Education Center failed to produce subpoenaed
documents.
9th--The INS delivered five additional data tapes
containing a total of 19,554 names matching the first name,
last name, and date of birth as individuals on the Orange
County voter registration tape.
12th--Committee Chairman Bill Thomas and Task Force
Chairman Vernon Ehlers wrote to Ranking Minority Member Sam
Gejdenson and Task Force Member Steny Hoyer to explain the
timeline for Contestant and Contestee discovery.
13th--The INS wrote to the Committee to explain that a list
of 4,023 names had been forwarded to its Los Angeles District
Office and that they had began to gather the physical alien
files in order to complete the data sheets requested by the
Committee.
16th--The California Secretary of State issued a legal
opinion stating that a person who has unlawfully registered to
vote prior to becoming a U.S. citizen is not entitled to vote,
even if that person is naturalized prior to the election.
19th--The Orange County Registrar informed the Committee
that the new number of invalid absentee votes is 124.
23rd--The Committee wrote a letter to the U.S. Attorney's
office requesting that they act on a criminal complaint filed
by the Contestant.
23rd--The Committee requested that the INS provide data
sheets for an additional 1,349 individuals.
25th--The Committee received the first installment of 3,875
INS data worksheets detailing the immigration status of
individuals registered to vote in CA 46. These worksheets
contained information compiled by the INS including date of
naturalization, date of birth, date of registration to vote,
alien number, and voter affidavit number. The information
contained on these worksheets was used by the Committee to
verify the immigration status of registered voters and the
legality of their votes. These worksheets were requested by
Committee letters between June 25, 1997 and October 20, 1997.
The requested worksheets arrived at the Committee periodically
between June 25 and February 6, 1998. While most of the
information requested by the Committee was produced between
these dates, there remained some data sheets that were never
produced.
30th--The Committee again wrote to the Deputy Attorney
General of the United States to request that the Department of
Justice advise the Committee of the status of the criminal
complaint filed by the Contestant.
30th--The Orange County Registrar of Voters wrote to inform
the Committee that a certain group of individuals had
registered to vote on a date different than had been originally
stated by the Registrar of Voters. These new, later dates would
then make their registrations valid under California law.
July 1997
16th--The Contestant wrote to the U.S. Attorney to provide
information regarding the District Court's rulings and the
procedures employed by the Contestant to encourage subpoena
enforcement.
18th--The INS delivered an additional 260 data worksheets
to the Committee. On July 23, 1997 the INS delivered an
additional 85 data worksheets to the Committee.
21st--Assistant U.S. Attorney Jonathon Shapiro wrote to the
Contestant to inform him that the Office of the U.S. Attorney
``does not generally use criminal prosecution to enforce civil
subpoenas.''
25th--Assistant Attorney General Andrew Fois wrote to the
Committee in response to repeated requests for information
regarding the Contestant's criminal complaint against Hermandad
Mexicana Nacional, to explain that the Central District ``does
not generally use criminal prosecution to enforce civil
subpoenas.''
29th--The INS delivered an additional 314 data worksheets
to the Committee.
29th--The Ranking Minority Member Sam Gejdenson and Task
Force Member Steny Hoyer wrote to the INS to make three
requests for information.
30th--The INS delivered three data tapes containing the
results of a match analysis of three INS databases and the
Orange County registered voter list.
August 1997
8th--The Committee wrote to the INS requesting that the INS
review an additional 153 alien files recommended by the
Committee.
8th--The INS delivered an additional 253 data worksheets to
the Committee.
15th--The Committee wrote to the Orange County District
Attorney to request copies of certain computer files seized
from Hermanad Mexicana Nacional during a January raid on that
organization.
18th--The Committee wrote to the Orange County Superior
Court Clerk to request a list of all individuals who claimed
that they were not citizens when called for jury duty.
19th--The Committee wrote to the INS requesting that the
INS review additional alien files recommended by the Committee.
19th--The INS delivered an additional 608 data worksheets
to the Committee.
21st--The Orange County District Attorney delivered certain
computer files requested by the Committee that were seized from
Hermanad Mexicana Nacional during a January raid.
25th--The Committee wrote to the INS requesting that the
INS review additional alien files recommended by the Committee.
25th--The Ranking Minority Member Sam Gejdenson and Task
Force Member Steny Hoyer wrote to Committee Chairman Bill
Thomas requesting his assistance in transmitting their request
for information to the INS.
29th--The INS delivered an additional 340 data worksheets
to the Committee.
September 1997
2nd--The Orange County Superior Court delivered the
electronic list of all individuals who claimed that they were
not citizens when called for jury duty, as requested by the
Committee.
3rd--The Committee wrote three letters to the INS
requesting that the INS review additional alien files
recommended by the Committee.
4th--The Bipartisan Legal Advisory Group of the U.S. House
of Representatives filed an amicus brief with the U.S. District
Court, Central District of California, in support of the
constitutionality of the discovery provisions of the Federal
Contested Elections Act.
5th--The Committee wrote to the INS requesting that the INS
review additional alien files recommended by the Committee.
8th--The Committee wrote to the INS requesting that the INS
review additional alien files recommended by the Committee.
9th--Committee Chairman Bill Thomas forwarded the Minority
Member's request to the INS as requested in their August 25,
1997 letter.
11th--The Minority Counsel to the Committee requested
copies of registration affidavits from the Orange County
Registrar of Voters for approximately 200 individuals.
12th--The INS responded to the Committee's request
forwarded by Chairman Thomas in behalf of Minority Members
Gejdenson and Hoyer including documents and information
pertaining to the citizenship status of certain individuals.
12th--The INS delivered an additional 418 data worksheets
to the Committee.
15th--The Committee wrote to the California Secretary of
State, in his capacity as the chief election officer of the
State of California, to request that he review and verify the
results of the Committee's voter analysis.
17th--The Orange County Registrar of Voters produced the
minority requested registration affidavits.
18th--The House of Representatives Office of the General
Counsel issued a legal memorandum to Chairman Thomas on the
subject of sharing information received by the Committee.
Specifically, the memorandum stated that the Committee could
share information received from the INS with a state government
agency in the process of conducting an investigation.
22nd--The INS delivered an additional 237 data worksheets
to the Committee.
23rd--The Committee wrote to the INS requesting that the
INS review additional alien files recommended by the Committee.
23rd--U.S. District Court Judge Gary Taylor held that the
subpoena provisions of the Federal Contested Elections Act are
constitutional.
24th--The Committee met to vote on three CA 46 issues.
First the Committee voted on motions to quash or modify
subpoenas issued by the Contestant. The Committee voted to
quash subpoenas issued to Loretta Sanchez, Rancho Santiago
College, Naturalization Assistance Service, Carpenters Local
803/2361, and R. Scott Moxley. The Committee voted to modify
and enforce subpoenas issued to Nativo Lopez, Michael Farber,
and Active Citizenship Campaign. The Committee voted to pass a
House Resolution urging the Office of the United States
Attorney for the Central District of California to file
criminal charges against Hermandad Mexicana Nacional for
failure to comply with a valid subpoena under the Federal
Contested Elections Act. Finally, the Committee voted to issue
interrogatories to Robert K. Dornan, Michael Farber, Loretta
Sanchez, Wylie Aitken, John Shallman, Benny Hernandez, Nativo
Lopez, CA Secretary of State Bill Jones, and Orange County
District Attorney Michael Capizzi. The interrogatories were
issued on September 25, 1997.
25th--The Committee issued letters to all parties whose
motions were resolved at the September 24, 1997 Committee
meeting.
25th--The California Secretary of State wrote to the
Committee to explain that he would be completing the
verification process requested by the Committee on September
15, 1997.
26th--The INS delivered an additional 37 data worksheets to
the Committee.
29th--Hermandad Mexicana Nacional filed a Petition For
Permission to Appeal From an Order of the United States
District Court for the Central District of California.
30th--The House of Representatives passed House Resolution
244, demanding that the Office of the United States Attorney
for the Central District of California file criminal charges
against Hermandad Mexicana Nacional for failure to comply with
a valid subpoena under the Federal Contested Elections Act.
There were 219 votes cast in the favor of the resolution and
203 against it.
October 1997
1st-14th--Loretta Sanchez, Robert Dornan, Sanchez Campaign
Chair Wylie Aitken, Sanchez Campaign Manager John Shallman and
Sanchez Field Director Bennie Hernandez responded to Committee
interrogatories. Orange County District Attorney Michael
Capizzi and California Secretary of State Bill Jones answered
interrogatories posed by minority members of the Committee.
Nativo Lopez and Michael Farber refused to answer the questions
posed by the Committee.
2nd--The INS delivered an additional 324 data worksheets to
the Committee.
6th--The Contestant filed an Answer to the Petition of
Hermandad Mexicana Nacional For Permission to Appeal From an
Order of the United States District Court for the Central
District of California.
10th--The INS delivered an additional 214 data worksheets
to the Committee. On October 14, 1997 the California Secretary
of State wrote to the Committee to transmit federal elections
reform proposals.
16th--The Committee wrote to the Orange County Superior
Court to request a list of persons who failed to respond to
jury summons.
17th--The INS delivered an additional 203 data worksheets
to the Committee.
20th--The Committee wrote to the INS requesting that the
INS review additional alien files recommended by the Committee.
22nd--The INS delivered an additional 230 data worksheets
to the Committee.
23rd--Mr. Gephardt introduced a privileged resolution that
required the Committee to conclude its investigation. The
resolution was voted down 222-204.
24th--Ninth Circuit Court of Appeals denied Hermandad
Mexicana Nacional's request to appeal Federal District Court
Judge Taylor's ruling on the constitutionality of the FCEA
discovery process.
24th--The Task Force met and voted on two issues related to
the contested election in CA 46. First, the Task Force voted to
issue and enter into a ``Memorandum of Understanding'' between
the Task Force and the California Secretary of State. The
``Memorandum of Understanding'' specified in detail the
procedures by which the CA Secretary of State was to conduct
citizenship status verification of individuals whom the
Committee had identified as illegitimate. Second, the Task
Force passed a resolution requesting that the Chairman of the
Committee on House Oversight issue Committee subpoenas to
Nativo Lopez, Hermandad Mexicana Nacional, and Michael Farber.
This resolution related to information that those entities had
which the Task Force felt may be of value to their
investigation.
27th--The Chairman of the Committee and the California
Secretary of State signed the ``Memorandum of Understanding''.
28th--The Committee released the lists of possible illegal
voters to both the CA Secretary of State and the Los Angeles
District Director of the INS as stipulated in the Memorandum of
Understanding.
28th--The following members each introduced privileged
resolutions that required the Committee to conclude its
investigation: Mr. Menendez (tabled), Mr. Becerra (tabled), Ms.
Norton (tabled), Mr. Condit (tabled), Ms. Roybal-Allard
(tabled), Ms. Hooley (tabled), Ms. Waters (tabled), and Mr.
Dooley (tabled).
29th--The following members each introduced privileged
resolutions that required the Committee to conclude its
investigation: Mr. Gephardt (vote to table passed 218-200).
30th--The INS delivered an additional 148 data worksheets
to the Committee.
30th--The Orange County Superior Court delivered an
electronic list of all individuals who failed to appear in
response to jury summons issued by the Orange County Jury
Commissioner for the period June 1, 1997 to October 29, 1997.
30th--The following members each introduced privileged
resolutions that required the Committee to conclude its
investigation: Mr. Hefley (vote to table passed 212-198), Ms.
Roybal-Allard (vote to table passed 216-200), Ms. Norton (vote
to table passed 214-187), Mr. Condit (vote to table passed 212-
190), Mr. Becerra (vote to table passed 217-193), Ms. Hooley
(vote to table passed 212-197), Ms. Waters (vote to table
passed 214-196), and Mr. Dooley (vote to table passed 208-192).
31st--The Los Angeles District Director of the INS wrote to
the Committee to explain that his office would not perform the
verification process requested by the Committee on October 28,
1997.
31st--The following members each introduced privileged
resolutions that required the Committee to conclude its
investigation: Ms. Harman (tabled), Ms. McKinney (tabled), Ms.
McCarthy (tabled), Ms. DeLauro (tabled), Ms. Furse (tabled),
Mrs. Mink (tabled), Mrs. Maloney (tabled), Ms. Slaughter
(tabled), Ms. DeLauro (tabled), Ms. Velazquez (tabled), Ms.
Jackson-Lee (tabled), Ms. Danner (tabled), Ms. Carson (tabled),
Ms. Lofgren (tabled), Ms. Woolsey (tabled), Ms. Eddie Bernice
Johnson (tabled), Mrs. Kennelly (tabled), Ms. Kilpatrick
(tabled), Mrs. Thurman (tabled), Ms. Stabenow (tabled), Ms.
Hooley (tabled), Mrs. Meek (tabled), and Ms. Roybal-Allard
(tabled).
November 1997
4th--The following members each introduced privileged
resolutions that required the Committee to conclude its
investigation: Mrs. Lowey (tabled), Mrs. Clayton (tabled), Ms.
Brown (tabled), Ms. Kaptur (tabled), Mrs. McCarthy (tabled),
Ms. Millender-McDonald (tabled), and Ms. Eddie Bernice Johnson
(tabled).
5th--The following members each introduced privileged
resolutions that required the Committee to conclude its
investigation: Mr. Becerra (tabled), Ms. Velazquez (tabled),
Mr. Menendez (tabled), Mr. Martinez (tabled), Mr. Ortiz
(tabled), Mr. Serrano (tabled), Mr. Gutierrez (tabled), Mr.
Underwood (tabled), Mr. Reyes (tabled), Mr. Torres (tabled),
Ms. Roybal-Allard (tabled), Mr. Hinojosa (tabled), Mr. Romero-
Barcelo (tabled), Mr. Rodriguez (tabled), and Ms. Furse (voted
down 217-194).
1st-14th--The Committee sent representatives to the Orange
County Registrar of Voters to make copies of voter registration
affidavits for over 4,000 individuals. This process took
approximately two weeks to complete.
3rd--The Committee wrote to the INS to request copies of
signatures for approximately 1,200 individuals. On the same
day, the Committee also requested birthplace information for
the same individuals.
12th--The Committee issued subpoenas to Nativo Lopez,
Hermandad Mexicana Nacional and Michael Farber. The subpoenas
requested various materials related to voter registration in
the 1996 election. The subpoenas had a return date of December
1 1997.
14th--The INS delivered an additional 121 data worksheets
to the Committee.
21st--Nativo Lopez, Hermandad Mexicana Nacional and Michael
Farber complied with the Congressional subpoenas by producing
requested documents.
21st--The INS delivered an additional 124 data worksheets
to the Committee.
December, 1997
1st-31st--Throughout the month of December, the Committee
spent considerable time comparing the signatures of individuals
identified as ineligible voters by the Committee and
individuals identified in INS databases. This was accomplished
by comparing the signatures on the registration affidavits
acquired from the Orange County Registrar of Voters and the
signatures on naturalization applications acquired from the
INS. The Committee also compared birthplace information for the
same individuals.
1st--The Committee wrote to the Contestant to confirm that
all filings had been completed and that the Contestant did not
have any further submissions to the Committee.
1st--The INS delivered an additional 97 data worksheets to
the Committee.
2nd--The INS delivered a list of birthplace information for
individuals identified in a November 3, 1997 Committee request.
2nd--The contestant filed a Response to Appellant's Showing
of Good Cause Why Its Appeal Should Not Be Dismissed.
8th--The Contestant wrote to the Committee to confirm that
he had completed his submissions to the Committee.
12th--The United States Court of Appeals for the Ninth
Circuit dismissed the Contestee's appeal of Judge Taylor's
September 23, 1997 decision as moot.
12th--The Committee requested that the INS produce
additional photocopies of signatures.
15th--The INS delivered an additional 116 data worksheets
to the Committee.
16th--The Committee wrote to the Contestee to inform her
that the Contestant had completed his submissions to the
Committee and that she had 30 days to submit a closing brief.
16th--The INS delivered an additional 234 signature sheets
to the Committee.
17th--The INS delivered a list of birthplace information
for 722 individuals.
19th--The INS delivered an additional 181 data worksheets
to the Committee.
29th--The INS delivered an additional 569 signature sheets
to the Committee.
January 1998
7th--The INS delivered an additional 655 signature sheets
to the Committee.
13th--The INS delivered an additional 121 data worksheets
to the Committee.
16th--Hermandad Mexicana Nacional filed a Notice of Motion
For Return of Items Seized Pursuant to Search Warrant with the
Superior Court of the State of California for the County of
Orange.
18th--Mr. Gephardt introduced a privileged resolution
calling for the dismissal of the contested election in CA 46.
The resolution was tabled by a vote of 214-189.
February 1998
4th--The Task Force for the Contested Election in the 46th
Congressional District of California met and voted to dismiss
the contested election.
4th--The Committee met and voted 8-1 to dismiss the
contested election.
6th--The INS delivered an additional 378 signature sheets
to the Committee.
12th--The House of Representatives considered the motion to
dismiss the contested election in California's 46th
Congressional District.
APPENDIX B: INVESTIGATION BY THE TASK FORCE
the investigation conducted by the task force
In the absence of a countervailing constitutional privilege
or a self-imposed statutory restriction upon its authority,
Congress and its committees have virtually plenary power to
compel information needed to discharge its legislative function
from executive agencies, private persons, and organizations
and, within certain constraints, the information so obtained
may be made public.
Although there is no express provision of the Constitution
which specifically authorizes Congress to conduct
investigations and take testimony for the purposes of
performing its legitimate functions, numerous decisions of the
Supreme Court have firmly established that the investigatory
power of Congress is so essential to the legislative function
as to be implicit in the general vesting of legitimate power in
Congress.63 Thus, in Eastland v. United States
Servicemen Fund the Court explained that ``the scope of its
power of inquiry * * * is as penetrating and far-reaching as
the potential power to enact and appropriate under the
Constitution.'' 64 In Watkins v. United States the
Court further described the breadth of power of inquiry: ``The
power of the Congress to conduct investigations is inherent in
the legislative process. That power is broad. It encompasses
inquiries concerning the administration of existing laws as
well as proposed or possibly needed statutes.'' 65
---------------------------------------------------------------------------
\63\ E.g., McGrain v. Daugherty, 272 U.S. 135 (1927); Watkins v.
United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360
U.S. 109 (1950); Eastland v. United States Servicemen Fund, 421 U.S.
491 (1975); Nixon v. Administrator of General Services, 433 U.S. 425
(1977); see also, United States v. A.T.T., 551 F.2d 384 (D.C. Cir.
1976) and F.2d 1212 (D.C. Cir. 1977).
\64\ 421 U.S. at 504, n. 15 (quoting Barenblatt, supra, 360 U.S. at
111).
\65\ 354 U.S. at 187.
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the subpoena power
The power of inquiry, with the accompanying process to
enforce it, has been deemed ``an essential and appropriate
auxiliary to the legislative function.'' A properly authorized
subpoena issued by a committee or subcommittee has the same
force or effect as a subpoena issued by the parent House
itself.66 To validly issue a subpoena, individual
committees or subcommittees must be delegated this authority.
Both Senate 67 and House 68 rules
presently empower all standing committees and subcommittees to
require the attendance and testimony of witnesses and the
production of documents. Special or select committees must be
specifically delegated that authority by Senate or House
resolution.69 The rules or practices of standing
committees may restrict the issuance of subpoenas only to full
committees or in certain instances allow issuance by a
committee chairman alone, with or without the concurrence of
the rankingminority member.
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\66\ McGrain v. Daugherty, supra, 273 U.S. at 158.
\67\ Senate Rule XXVI(1).
\68\ House Rule XI(2)(m)(1).
\69\ See, e.g., S.Res.23, 100th Cong. (Iran-Contra); Sen. Res. 495,
96th Cong. (Billy Carter/Libya).
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As previously indicated, committees may issue subpoenas in
furtherance of an investigation within their subject matter
jurisdiction as defined by Senate 70 and House
71 rules which confer both legislative and oversight
jurisdiction. Subpoenas may be issued on the basis of either
source of authority.72
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\70\ Senate Rule XXV.
\71\ House Rule X.
\72\ The standard to be applied in determining whether the
congressional investigating power has been properly asserted was
articulated in Wilkinson v. United States: (1) the committee's
investigation of the broad subject matter area must be authorized by
Congress; (2) the investigation must be pursuant to ``a valid
legislative purpose''; and (3) the specific inquiries must be pertinent
to the broad subject matter areas which have been authorized by the
Congress. 365 U.S. 399, 408-09 (1961).
---------------------------------------------------------------------------
The efforts of the Task Force with regard to this case are
warranted because the jurisdiction of the Committee includes:
``Measures relating to the election of the President, Vice
President, or Members of Congress; corrupt practices; contested
elections; credentials and qualifications; and Federal
elections generally'' 73
---------------------------------------------------------------------------
\73\ House Rule X(1)(h)(12)
---------------------------------------------------------------------------
In the Course of this investigation the Committee issued
subpoenas to the Immigration and Naturalization Service, the
Orange County District Attorney, Hermandad Mexicana Nacional,
Nativo Lopez, and Michael Farber. The subpoena directed to the
Immigration and Naturalization Service provided the Task Force
with the information central to the Task Force's analysis of
alien voting in the 46th District of California. The subpoena
directed to the Orange County District Attorney also provided
important information to the Task Force.
congressional subpoena for records from the immigration and
naturalization service
On April 19, 1997 the Committee requested that the INS
compare its databases to the Orange County Voter Registration
in order to determine if aliens in the INS database were
registered in Orange County. On May 1st, the day that the
Committee had requested that the INS provide the results of its
comparison, the agency wrote that within two weeks, the INS
would inform the Committee ``* * * whether, when, and in what
form INS will be able to retrieve and provide you such
information.''
The Committee could not accept the INS's dilatory and
obstructionist response. Therefore, on May 14th, the Committee
issued two subpoenas to the INS. The first subpoena requested
the INS to match its database against the Orange County Voter
Registration list in order to determine if any non-citizens
registered to vote. The second subpoena requested that the INS
provide the Committee with copies of their relevant databases.
On May 21st, in partial compliance with the subpoenas, the INS
provided to the Committee the results of a last name and date-
of-birth match 74 between the INS's Central Index
System and Naturalization Casework System and the Orange County
voter registration list. This computer run identified over
368,520 matches in Orange County and approximately 136,052
matches in the 46th District. All matches are limited to INS
files that indicate that a person is not naturalized or that
they naturalized after the date on which they registered to
vote.
---------------------------------------------------------------------------
\74\ Any data error in the data in either field in either the INS
or the OC Registration databases would preclude a match. Further, any
change of last name either due to marriage or Anglicization would
preclude a match.
---------------------------------------------------------------------------
On April 29th the INS provided the Task Force with a
refined computer run that identified 19,554 first name/last
name/date-of-birth matches between an INS file, with either no
evidence of naturalization or a date of naturalization after
registration, and the Orange County Voter list. The INS
indicated that 4,119 of these persons were registered in the
46th District. An analysis of the 136,052 last name matches by
the Task Force identified 210 exact first name matches not
included in the refined run conducted by the INS. These
additional matches brings the total exact first name matches in
the 46th District to 4,329.
The Task Force also manually reviewed the 136,052
individual list identifying possible additional first name
matches. This list of 136,052 matches runs to over 2,000 pages.
This manual review was necessary to capture typographical
errors and common variations on first names. The Task Force
discovered an additional 1,502 matches where the first name was
very similar but was missed by the computer check. These
additional matches are very narrowly confined to common name
variations and typographical errors.\75\
---------------------------------------------------------------------------
\75\ i.e. ``Chris'' and ``Christopher'' or ``John'' and ``Johhn''
---------------------------------------------------------------------------
In addition to the CIS and NACS databases the Task Force
requested last name/date-of-birth matches with the Deportable
Alien Control System (DACS), the Refugee, Asylee and Parolee
System (RAPS) and the Student and Schools System (STSC). Again
the Task Force manually reviewed last name/date-of-birth
matches for near first name matches missed by a computer check.
The DACS and RAPS systems yielded an additional 83 potentially
illegal votes. The STSC system yielded 192 potentially illegal
votes.
Beyond these additional INS databases the Task Force cross-
checked the 19,554 person class list of Naturalization
Assistance Services Corp. against the voter registration rolls
and the INS databases. NAS provided citizenship classes in
Orange County through Catholic Charities, One-Stop Immigration
Center, and Hermandad Mexicana Nacional. The NAS student list
included alien numbers and thus allowed the Task Force to
bypass the last name/date-of-birth match level of matching.
Also the Task Force obtained lists of persons who the
Orange County Superior Court had recorded as claiming non-
citizenship when they were summoned for jury duty. (The Court's
records have a 33% error rate.) CHO staff manually reviewed
this list of over 30,000 persons. This check yielded an
additional 386 potentially illegal votes.
In January of 1997, the Orange County District Attorney
seized material from the offices of Hermandad Mexicana
Nacional. In February of 1997, the Committee on House Oversight
placed these seized materials under subpoena. In August of
1997, the House Oversight Committee obtained from the Orange
County District Attorney's Office, pursuant to the February,
1997 subpoena, a copy of several lists of names seized from
Hermandad. The Task Force compared the names obtained from
Hermandad to the 46th District voter list and identified
matches between persons associated with Hermandad and voters.
The Task Force then requested that the INS review its files for
matches with the 419 voters identified from the Hermandad
material.
In addition to these efforts to discover documented
evidence that a person was not a citizen, the Task Force
requested, at the suggestion of the minority, that the INS
produce the mirror image of the initial computer match run by
the Task Force. That is, the INS ran a match between the Orange
County Voter Registration Lists and the CIS and NACS seeking
persons who had evidence that they were citizens as of the date
that they were registered. The INS generated two matches: a
full name match and a last name match. Surprisingly, the last
name match is not entirely inclusive of the full name match.
Therefore the Task Force compared both lists of persons with
evidence of citizenship as of their registration date to the
lists of persons without evidence of citizenship as of their
naturalization date. This comparison generated over 1,000
persons with conflicting information. Because the Task Force
had employed a manual review seeking near first name matches
when seeking evidence that a person was not a citizen, the Task
Force also employed a manual review of evidence indicating that
a person was a citizen at the time of their registration. After
analyzing these files the Task Force concluded that virtually
all of the persons with conflicting files were citizens at the
time of their registration.
For each match identified by these computer runs the Task
Force requested that the INS review the actual paper file
associated with the match. This review of the paper file was
summarized on a one-page worksheet designed by the Task Force
in consultation with the INS. This worksheet contained
information on the citizenship status of the individual, middle
name data, and the most recent INS address information. The
paper file reviews conducted by the INS indicated that over 50%
of the INS files that carried no record of naturalization in
the computer database actually related to a person who was a
citizen as of their date of registration.
In addition to the address and citizenship information
summarized on the worksheets produced by the INS the Task Force
requested that the INS provide birthplace and signature
information for 3,749 persons.
Throughout this investigation the Democratic Minority
received, directly from the INS, exactly the same information
as the Majority. Also, the Majority provided copies of all
registration affidavits to the Minority.
The filing system created by the Majority employs the
unique affidavit number related to an individual voter to
identify the file (electronic and hardcopy) containing all the
information relating to the status of that voter. Ideally, each
person in the INS databases would have one and only one ``alien
number.'' However, in reality, some persons have multiple alien
numbers. Often, the different alien number files contain
inconsistent information as to the citizenship status of the
individual. This inconsistency most frequently occurs when a
temporary file is created and that temporary file is not
indexed back to the original file. The temporary file is
usually more recent and thus more likely to include a
naturalization certificate. The INS database often locates the
primary file first and that leads to the temporary file.
Further, more than one person in the INS's files may meet the
initial match criteria between a registered voter and an INS
file. Therefore, many of the unique affidavitnumbers have
multiple alien numbers associated with them.
There is a fundamental problem with any investigation into
voting by non-citizens. Undocumented or illegal aliens do not
have a paper trail at the INS. The INS only keeps records on
documented, legal aliens. Without more accurate data collection
at the point of registration persons, will be able to register
using fabricated identities and thus will be difficult if not
impossible to detect.
ballots cast in the november 1996 election
To determine who cast ballots in the November 1996
election, the Task Force referred to the information obtained
directly from the Orange County Registrar's Office. The Task
Force printed, from the computer list provided by the
Registrar's office, the entire list of 104,636 people who voted
in the 1996 election from the 46th District. Each time the Task
Force received new alien file summary worksheets from the INS,
the works sheets were separated into two categories: (1) those
on the voted list and (2) those not on the voted list.
In addition to the electronic record, the Registrar's
office provided the Task Force with the results of its manual
canvass. The manual canvass listed, by precinct, any changes,
corrections, and updates to the electronic record of votes cast
that were found during the recount and the review after the
election. Also, the Registrar provided the Task Force with a
list of persons who cast absentee ballots but were not listed
on the electronic voter tape. Finally, the Orange County
Registrar of Voters provided the Task Force with a list of
persons who utilized the ``New Citizen Window'' provision of
the California Elections Code.\76\ This provision allows person
who naturalize within 30 days of election day to register to
vote despite the general prohibition on registering to vote
within 30 days of election day. Because of an automatic default
in the computer software utilized by the Orange County
Registrar of Voters, the registration date of these persons
would default to the last day available to the general
population. Therefore it would appear that these persons had
registered prior to their naturalization when in fact they had
utilized the New Citizen provision. Also, the Task Force
determined that persons who were naturalized prior to the 1996
election cycle but after they had registered had cured their
defective registration by maintaining their registration
subsequent to naturalizing. The Democratic Minority was
provided with all of the material from the Orange County
Registrar of Voters.
---------------------------------------------------------------------------
\76\ Cal. Elec. Code. Sec. 3501.
---------------------------------------------------------------------------
On October 28, 1997 the Task Force requested that the
California Secretary of State reconfirm the list of persons who
had cast ballots in the November, 1996 election. The Task
Force's Democratic Minority received an exact copy of the list
provided to the Secretary of State. The list provided to the
Secretary of State at this juncture in the investigation
included the widest possible definition of a ``match''. For
example, it included ``matches'' that involved persons with
different middle names and persons with conflicting INS
information. Ultimately, the Task Force determined that the
majority of persons included on this list were registered
properly either because additional INS data obtained by the
Task Force indicated that the person was a citizen as of
registration or the voter did not constitute a sufficiently
accurate match with an INS file that indicated an illegal
registration. On November 5, 1997, Secretary of State Jones
provided the Task Force with a list confirming which registered
voters had cast ballots in the November, 1996 election. The
Task Force updated its files on the voters so that it contained
the verification provided by the Secretary of State. The Task
Force's Democratic Minority received an exact copy of Secretary
of State Jones's vote verification.
analysis of the evidence obtained by the task force
Based on the information in this INS summary and the
information in the Orange County voter list, the potential
matches identified by the Task Force have been divided into 15
categories. Each category is based upon a match between the
Orange County voter registration rolls and INS records, and/or
the source of the information that casts suspicion as to the
legitimacy of that voter. Each category is in turn subdivided
based on relevant criteria such as the naturalization status of
the individual in the INS files, the place of birth claimed by
the person on the Orange County voter registration affidavit,
the age of the individual or the sex of the individual. The
naturalization status categories are: (1) the individual is not
naturalized, (2) the individual naturalized after registering
to vote, and (3) the individual naturalized after voting.
The Task Force's analysis of each individual vote rests on
the rebuttable presumption that each vote cast was cast
legally. Therefore, the Task Force undertook the task of
discovering documentary evidence that a person was not a
citizen as of the date of their registration. The Task Force
never presumes that any voters were illegal.
The Task Force's effort to investigate this allegation has
involved the detailed review of information related to over
7,871 voters. The Task Force has only reviewed voters for whom
the Task Force obtained an initial indication that the person
may not have been eligible to cast a ballot in the November
1996 election.
The Task Force has documented evidence indicating that 624
persons registered when they were not citizens. Of these, 82
persons naturalized after they registered but before they cast
their ballot. In addition, 26 claimed that they were born in
the United States when they registered. The Task Force has
attempted to verify the birth-records of these voters that
appear to match INS files. Persons whose birth-records have
been verified have been removed from the Majority's count.
However, without additional information such as mother's maiden
name and city of birth, a birth-record check is impossible to
complete accurately.
In addition there are 196 persons for whom the Task Force
has discovered some circumstantial indication that they may not
have been citizens when they registered. However this
information is incomplete and possibly inaccurate. For example,
records of individuals who have disclaimed citizenship when
summoned for jury duty have a 33% error rate. When a sample of
450 records was tested, it was determined 150 records were
incorrectly scanned into the Orange County Superior Court's
computer database. Also, a number of paper files have been
``lost'' by the INS and the error rate between electronic and
paper files exceeds 50%. Finally, 41 matches in this
circumstantial category involve voters who claim U.S. birth.
Of the remaining files reviewed by the Task Force: 5,303
persons were actually citizens at the time that they registered
and 1,718 persons appear to have registered improperly but did
not vote in the November 1996 election. Summary of Results:
------------------------------------------------------------------------
Category
------------------------------------------------------------------------
Documented Evidence of Invalid Voting
1. Absentee Ballots--identified by the OC
Registrar.................................... 124 ...........
-------------------------
Sub-total............................... 124 124
=========================
2. Hermandad Registrants--identified by the
California Secretary of State and the LA
Office of the INS (independently confirmed by
CHO work).................................... 278
4. Exact Address.............................. 120 ...........
3. Signatures Match........................... 71 ...........
5. Exact Middle Initial....................... 88 ...........
6. Address Same City.......................... 19 ...........
7. Address CA-46.............................. 3 ...........
8. Address Orange County...................... 7 ...........
9. Address California......................... 38 ...........
-------------------------
Sub-total............................... 624 748
=========================
Circumstantial Indication of Invalid Voting
10. Address US................................ 53 ...........
11. Address None.............................. 12 ...........
12. Border Crossing Cards (only name and
birthdate information)....................... 34 ...........
13. Student Visas (only name and birthdate
information)................................. 3 ...........
14. INS Lost paper files (born after 1957).... 19 ...........
15. OC Jury List (born after 1957)............ 75 ...........
-------------------------
Sub-total............................... 196 944
------------------------------------------------------------------------
1. The Orange County Registrar of Voters: 124
The Orange County Registrar of Voter determined that 124
absentee ballots were invalid. The Registrar also referred 11
potential double votes and 4 potential business address votes
to the Orange County District Attorney. The District Attorney
has not confirmed that any of these votes were illegal and
therefore has taken no action.
2. Persons Registered by Hermandad Mexicana Nacional: 278
The California Secretary of State and the Los Angeles
Office of the INS have identified 306 persons illegally
registered by Hermandad who voted in the November 1996
election. The Task Force has been able to confirm, through its
own investigation, that 278 persons were illegally registered
by Hermandad and voted in the November, 1996 election. Of
these, 93 voters were naturalized after they registered.
3. Exact address
In addition to a First Name/Last Name/Date-of-Birth match,
the address from the Orange County voter registration affidavit
matches the address in an INS file.
----------------------------------------------------------------------------------------------------------------
Naturalized Naturalized
Not after after Total Total
naturalized registering voting (percent)
----------------------------------------------------------------------------------------------------------------
Voter claims foreign birthplace................. 49 61 7 117 97.5
Voter claims US birthplace...................... 3 0 0 3 2.5
---------------------------------------------------------------
Total..................................... 52 61 7 120 100
43.3% 50.8% 5.8%
----------------------------------------------------------------------------------------------------------------
4. Matching signatures
The signature from the Orange County voter registration
affidavit matches the signature from an INS alien file.
----------------------------------------------------------------------------------------------------------------
Naturalized Naturalized
Not after after Total Total
naturalized registering voting (percent)
----------------------------------------------------------------------------------------------------------------
Voter claims foreign birthplace................. 54 9 1 64 90.1
Voter claims US birthplace...................... 5 2 0 7 9.9
---------------------------------------------------------------
Total..................................... 59 11 1 71 100
83.1% 15.5% 1.4%
----------------------------------------------------------------------------------------------------------------
5. Exact middle initial
In addition to a First Name/Last Name/Date-of-Birth match,
the middle initial from the Orange County voter registration
rolls matches the middle initial from the INS records. The
address information that relates to these matching files
subdivides the middle initial matches.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total
A-SC A-CA46 A-9C A-CA A-US A-NO Total (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Voter claims foreign birthplace............................ 17/2 nar 10/1 nar/1 nav 7 21/1nav 13 7 80 90.9
Voter claims US birthplace................................. 0 0 1 0 5/1 nar 1 8 9.1
--------------------------------------------------------------------------------------------
Total................................................ 19 12 8 22 19 8
21.6% 13.6% 9.1% 25% 21.6% 9.1% 88 100
--------------------------------------------------------------------------------------------------------------------------------------------------------
6. Address same city
In addition to a First Name/Last Name/Date-of-Birth match,
the address from the Orange County voter registration affidavit
is in the same city as the address from an INS record. Middle
initial data is either blank in both the Orange County
registration file and the INS file or blank in one set of data.
----------------------------------------------------------------------------------------------------------------
Naturalized Naturalized
Not after after Total Total
naturalized registering voting (percent)
----------------------------------------------------------------------------------------------------------------
Voter claims foreign birthplace................. 16 0 0 16 84.2
Voter claims US birthplace...................... 2 1 0 3 15.8
---------------------------------------------------------------
Total..................................... 18 1 0
94.7% 5.35% 0% 19 100
----------------------------------------------------------------------------------------------------------------
7. Address CA-46
In addition to a First Name/Last Name/Date-of-Birth match
the address from the Orange County voter registration
affidavits and the address from an INS record are both within
CA-46. Middle initial data is either blank in both the Orange
County registration file and the INS file or blank in one set
of data.
----------------------------------------------------------------------------------------------------------------
Naturalized Naturalized
Not after after Total
naturalized registering voting
----------------------------------------------------------------------------------------------------------------
Voter claims foreign birthplace............................. 3 0 0 3
Voter claims US birthplace.................................. 0 0 0 0
---------------------------------------------------
Total................................................. 3 0 0 3
----------------------------------------------------------------------------------------------------------------
8. Address Orange County
In addition to a First Name/Last Name/Date-of-Birth match:
the address from the Orange County voter registration
affidavits and the address from an INS record are both within
Orange County. Middle initial data is either blank in both the
Orange County registration file and the INS file or blank in
one set of data.
----------------------------------------------------------------------------------------------------------------
Naturalized Naturalized
Not after after Total
naturalized registering voting
----------------------------------------------------------------------------------------------------------------
Voter claims foreign birthplace............................. 7 0 0 7
Voter claims US birthplace.................................. 0 0 0 0
---------------------------------------------------
Total................................................. 7 0 0 7
----------------------------------------------------------------------------------------------------------------
9. Address California
In addition to a First Name/Last Name/Date-of-Birth match:
the address from the Orange County voter registration
affidavits and the address from an INS record are both within
California. Middle initial data is either blank in both the
Orange County registration file and the INS file or blank in
one set of data. Eight of the INS addresses in this data are
dated and place the individual at the address outside of Orange
County in 1995-96.
----------------------------------------------------------------------------------------------------------------
Naturalized Naturalized
Not after after Total Total
naturalized registering voting (percent)
----------------------------------------------------------------------------------------------------------------
Voter claims foreign birthplace................. 28 0 0 28 73.7
Voter claims US birthplace...................... 10 0 0 10 26.3
---------------------------------------------------------------
Total..................................... 38 0 0 38 100
----------------------------------------------------------------------------------------------------------------
10. Address United States
In addition to a First Name/Last Name/Date-of-Birth match:
the address from the Orange County voter registration
affidavits and the address from an INS record are both within
the United States. Middle initial data is either blank in both
the Orange County registration file and the INS file or blank
in one set of data. Thirteen of the INS addresses in this data
are dated and place the individual at the address outside of
California in 1995-96.
----------------------------------------------------------------------------------------------------------------
Naturalized Naturalized
Not after after Total Total
naturalized registering voting (percent)
----------------------------------------------------------------------------------------------------------------
Voter claims Foreign birthplace................. 31 5 0 36 67.9
Voter claims US birthplace...................... 17 0 0 17 32.1
Total..................................... 48 5 0 53 100
---------------------------------------------------------------
90.6% 9.4% 0
----------------------------------------------------------------------------------------------------------------
Address none
In addition to a First Name/Last Name/Date-of-Birth match:
the INS records have either no address information whatsoever
or address information that relates to a foreign locale. Middle
initial data is either blank in both the Orange County
registration file and the INS file or blank in one set of data.
----------------------------------------------------------------------------------------------------------------
Naturalized Naturalized
Not after after Total Total
naturalized registering voting (percent)
----------------------------------------------------------------------------------------------------------------
Voter claims foreign birthplace.................. 11 0 0 11 91.7
Voter claims US birthplace....................... 1 0 0 1 8.3
--------------------------------------------------------------
Total.................................... 12 0 0 12 100
----------------------------------------------------------------------------------------------------------------
Border crossing cards
A Citizen of Canada or a British subject residing in Canada
or a citizen of Mexico may hold a nonresident alien border
crossing card.\77\ These persons are assigned alien numbers
beginning with ``80. A Border Crossing Card holder may enter
limited areas of the United States for limited periods of time.
The INS does not maintain a paper file on such persons.\78\
---------------------------------------------------------------------------
\77\ 8 CFR Sec. 212.6 Nonresident alien border crossing cards.
\78\ INS letter July 3, 1997.
----------------------------------------------------------------------------------------------------------------
Exact Indeterminate
middle middle Total Percent
initial initial
----------------------------------------------------------------------------------------------------- -------------
Voter claims foreign birthplace............... 17 6 23 67.6
Voter claims US birthplace.................... 4 7 11 32.4
-----------------------------------------------------------------
Total................................... 21 13 34 100
61.8% 38.2%
----------------------------------------------------------------------------------------------------------------
Student visas
These are matches between persons who have entered the
United States on student visas and the Orange County
registration files. The INS maintains limited information on
these persons.
Total
Voter claims foreign birthplace................................... 3
Voter claims US birthplace........................................ 0
-----------------------------------------------------------------
________________________________________________
Total......................................................... 3
INS lost files
These persons appear in the INS' electronic database
without any evidence of naturalization but the INS has lost
their hard files. The error rate between the initial electronic
matches between the INS' electronic database and the checks of
the INS' hard files has been 50%--half of the persons with no
indication of naturalization in the computer database have
naturalization certificates in their hard files. In addition,
persons who became 18 prior to 1975 could have naturalized
before the INS computerized its records. Women's files could
also have been ``lost'' because they have changed their last
name without notifying the INS or without the INS properly
updating its database. There are 13 males born after 1957 who
admit foreign birthplaces in this category.
----------------------------------------------------------------------------------------------------------------
Male Female Total Total
---------------------------------------------------------------------------------------------------- (percent)
Birth date 1957+ 1957+ ------------
----------------------------------------------------------------------------------------------------
------------
Middle initial EMI IMI EMI IMI
----------------------------------------------------------------------------------------------------------------
Voter claims foreign birthplace................... 8 1 4 4 17 89.5
Voter claims U.S. birthplace...................... 0 1 0 1 2 10.5
-------------------------------------------------------------
Total....................................... 8 2 4 5 19
-------------------------------------------------------------
Total.......................................
(1)10
(1)9 19
-------------------------------------------------------------
Total (percent)............................. ....... 52.6 ....... 47.4 ........... 100
----------------------------------------------------------------------------------------------------------------
15. Orange County jury list claimed non-citizen when summoned & the INS
has no record: 167
In the period from January 1, 1996 to August 15, 1997 these
persons may have claimed that they were not citizens when
summoned for jury duty. The data entry system at the Orange
County Superior Court has at least a 33% error rate. Therefore,
these persons may have been excused from jury duty for a reason
other than not being a citizen. (persons may also have
indicated that they were citizens but been entered under a
different code). In addition, for persons who naturalized
before 1975, the INS may not have their names in their
electronic databases. Further, women are more likely to have
changed their last name. Therefore, the persons that arouse the
most significant suspicion are the 40 admittedly foreign-born
males born after 1957.
----------------------------------------------------------------------------------------------------------------
Male Female Total Total
---------------------------------------------------------------------------------------------------- (percent)
------------
Birth date 1957+ 1957+
----------------------------------------------------------------------------------------------------------------
Voter claims foreign birth place............................ 40 25 65 86.7
Voter claims U.S. birthplace................................ 7 3 10 13.3
---------------------------------------------------
Total................................................. 47 28 75
---------------------------------------------------
Total (percent)....................................... 62.7 37.3 100
----------------------------------------------------------------------------------------------------------------
APPENDIX C: APRIL 19TH HEARING
Hearing
april 19, 1997 santa ana, california
On February 12, 1997, the Contestee wrote Task Force
Chairman Vern Ehlers and Ranking Minority Member Steny Hoyer
inviting the Task Force to conduct a Field Hearing in Orange
County that ``* * * would convincingly demonstrate to the Task
Force that no credible evidence cast doubt on the certified
results of the November 6 election.''
At that time, claims of voting fraud had been substantiated
independently by local newspapers, the Orange County District
Attorney, and the Secretary of State of California. The Task
Force, at its February 26, 1997 meeting, postponed disposition
of the Contestee's motion to dismiss election and moved that
Task Force hold a Field Hearing in Orange County.
The Task Force held the Field Hearing on April 19, 1997 at
the Santa Ana Court House. The Task Force heard eight hours of
testimony from the contest's parties, election officials and
other interested groups. Testimony was heard from California
Secretary of State Bill Jones, Orange County District Attorney
Michael Capizzi, Los Angeles District Director of the
Immigration and Naturalization Service Richard Rogers, Orange
County Registrar of Voters Rosalyn Lever, Robert K. Dornan,
William Hart, Congresswoman Sanchez, Wylie Aitken and former
Secretary of State Tony Miller.
Information gathered at this Field Hearing indicated that
the Immigration and Naturalization Service was unwilling to
assist either the Contestant or the Secretary of State Bill
Jones in determining if non-citizens voted in the 1996
election.\79\
---------------------------------------------------------------------------
\79\ Task Force for the Contested Election in the 46th
Congressional district of California: Hearing on the Merits p. 13.
APPENDIX D: INTERROGATORIES ISSUED BY THE COMMITTEE
Interrogatories Issued by the Committee on House Oversight
October 1, 1997
By September 1997, nearly a year had passed since the 1996
election and many months since the issuance of the Contestant's
subpoena's, yet many entities central to the investigation into
vote fraud still had not answered important questions as to
what they knew or how they were involved with the election.
At its September 24, 1997 meeting, the Committee on House
Oversight voted to authorize the Chairman, in consultation with
the Ranking Member, to issue interrogatories relevant to the
contested election.\80\ The Committee's Ranking Minority
Member, Sam Gejdenson, requested that the interrogatories be
sent within 7 days of the meeting. After the Committee Chairman
discussed the interrogatories with the Ranking Minority Member,
the interrogatories were issued to Michael Farber, Nativo
Lopez, Hermandad, Robert Dornan, Loretta Sanchez,\81\ Wylie
Aitken, John Shallman and Bennie Hernandez.
---------------------------------------------------------------------------
\80\ Rule XI, clause 2(m)(1)(B) of the Rules of the House of
Representatives. Rule No. 6(a)(2) of the Rules of Procedure of the
Committee on House Oversight.
\81\ At the September 24, 1997 meeting the Committee quashed the
Contestant's subpoena for the personal deposition of Loretta Sanchez.
The interrogatories issued by the Committee afforded the parties a less
confrontational venue for establishing the facts of this case.
---------------------------------------------------------------------------
The Democratic Minority was afforded the opportunity to
send interrogatories to individuals not included on the list
discussed in Committee. Because the Minority failed to notify
the Majority in a timely fashion of its intent to issue
interrogatories to the California Secretary of State and the
Orange County District Attorney, these interrogatories were
issued one day later.
Both Michael Farber and Nativo Lopez refused to answer the
interrogatories. Unfortunately, there is no statutory mechanism
by which the House can compel compliance with an
interrogatory.\82\
---------------------------------------------------------------------------
\82\ 2 U.S.C. Sec. 192 & Sec. 194 provide for the enforcement of
subpoenas issued by Congress, but make no provision for
interrogatories.
---------------------------------------------------------------------------
Congresswoman Sanchez's campaign manager, John Shallman
asserted in his interrogatory response that it had rebuffed
overtures by Nativo Lopez, through Art Montez of LULAC-Santa
Ana, to assist her campaign in exchange for financial
assistance to his political efforts. Sanchez's campaign manager
asserted that Lopez wanted ``to get some money from us [the
Sanchez campaign] for all the work he had been doing
[registering voters].'' \83\
---------------------------------------------------------------------------
\83\ Interrogatory of John Shallman.
---------------------------------------------------------------------------
Benny Hernandez denied the accusations \84\ of Nelson
Molina and Jana Carty that he had encouraged non-citizen voting
and double voting.
---------------------------------------------------------------------------
\84\ Task Force for the Contested Election in the 46th
Congressional district of California: Hearing on the Merits p. 199-204.
APPENDIX E: SUBPOENAS ISSUED BY THE COMMITTEE
Subpoenas Issued by the Committee on House Oversight
On February 11, 1997, the Committee on House Oversight met
and granted the Chairman, in consultation with the Ranking
Minority Member, the authority to issue subpoenas for the
purpose of obtaining information related to the contested
election or the voter fraud investigation.\85\
---------------------------------------------------------------------------
\85\ House Oversight Committee Rule 6 and House rule 11 Clause
2(m)(2)(A).
---------------------------------------------------------------------------
During the voter fraud investigation, Congresswoman Sanchez
and the Democratic Minority repeatedly declared that the
Congresswoman and those that were involved with registering
non-citizens to vote (i.e., Hermandad) never had any contact
with one another. When asked directly by Congressman Ney at the
April 19, 1997 Field Hearing if she or her campaign had any
contact with Hermandad, Congresswoman Sanchez, under oath,
responded ``Not at all.'' \86\ Although later at that same
hearing, Congresswoman Sanchez admitted that she did meet with
Nativo Lopez once during the campaign.\87\
---------------------------------------------------------------------------
\86\ Hearing Before the Committee on House Oversight Task Force for
the Contested Election in the 46th Congressional District of
California; April 19, 1997.
\87\ Hearing Before the Committee on House Oversight Task Force for
the Contested Election in the 46th Congressional District of
California; April 19, 1997.
---------------------------------------------------------------------------
In the material that was originally obtained by the Orange
County District Attorney and then forwarded to the Committee,
several documents showed that there was in fact a larger
involvement between Hermandad and Congresswoman Sanchez than
was declared by the Minority. Two phone message slips that were
seized from Nativo Lopez's office have Congresswoman's
Sanchez's name and a phone number on them. These messages
suggest that Mr. Lopez and Representative Sanchez were
exchanging phone calls during the campaign.
Other information obtained shows that Hermandad, despite
its non-profit status, was a politically active organization
immersed in Democratic politics. Hermandad not only opposed
Robert Dornan but promoted the success of the Democratic party
and the political ambitions of its Director, Nativo Lopez.
APPENDIX F: INVESTIGATIONS BY STATE AND LOCAL AUTHORITIES
The Orange County District Attorney
In December, 1996 the Orange County District Attorney
Michael Capizzi announced that his office would begin an
investigation into allegations of voter fraud in the November
1996 elections held in Orange County, California. As part of
this investigation, Capizzi examined Hermandad Mexicana
Nacional for possible violations of state election law. At the
center of his investigation was the allegation that Hermanadad
Mexicana Nacional had knowingly and willfully registered large
numbers of non-citizens to vote in 1996. On January 14, 1997
the office of the District Attorney conducted a raid of
Hermandad Mexicana Nacional, impounding many pieces of
potential evidence, including computers, files, and
organization records. In early December 1997, after a year long
investigation, an Orange County grand jury declined to indict
several individuals who coordinated the Hermandad Mexicana
Nacional voter registration effort. At least one witness who
had worked for Hermandad fled to Mexico early in 1997, making
the investigation more difficult. Although the District
Attorney failed to bring indictments, his research, together
with that completed by the Secretary of State, did prove that
61% percent of Hermandad's registrations were illegal.
The California Secretary of State
In December, 1996 California Secretary of State Bill Jones
announced that his office would begin an investigation into
allegations of voter fraud in the November 1996 elections held
in Orange County, California. With the initial cooperation of
the INS's Los Angeles district office, the Secretary of State
announced on April 9, 1997 that of 1,100 persons enrolled in
Hermandad citizenship classes, 490 documented non-citizens had
registered to vote in CA 46. Of these, 303 actually voted
illegally in CA 46, and 69 individuals had no record in INS
files. On September 15, 1997 the Committee wrote to the
California Secretary of State, in his capacity as the chief
election officer of the State of California, to request that he
review and verify the results of the Committee's voter
analysis. One month later, the Secretary of State confirmed
which of the individuals identified by the Committee as non-
citizens had voted in the November 1996 election.
APPENDIX G: CONTESTANT'S CRIMINAL COMPLAINT AGAINST HERMANDAD MEXICANA
NACIONAL
Failure To Comply With Federal Contested Election Act Subpoenas--H.
Res. 244
In the Dornan v. Sanchez case 11 parties 88
failed to comply with subpoenas issued under the Federal
Contested Election Act.89
---------------------------------------------------------------------------
\88\ Hermandad Mexicana Nacional, Hermandad Mexicana Nacional Legal
Center, Nativo Lopez, the Committee for Loretta Sanchez, Nativo Lopez
for School Board, Humberto Corona, Michael Farber, Lou Correa for State
Assembly, Southwest Voter Registration Project, Benny Hernandez, and
One-Stop Immigration and Education Center.
\89\ 2 U.S.C. Sec. 388.
---------------------------------------------------------------------------
Section 390 of the FCEA provides that ``Every person who,
having been subpoenaed as a witness under the Act to give
testimony or produce documents, willfully makes default * * *
shall be deemed guilty of a misdemeanor. * * *''
Amongst the parties defaulting is Hermandad Mexicana
Nacional, the organization at the center of the vote fraud
allegations in this case. On May 1, 1997 Hermandad failed to
comply with a subpoena as modified by the Committee on House
Oversight on April 16, 1997. On May 14th Contestant Dornan
referred Hermandad to the U.S. Attorney in Los Angeles for
prosecution pursuant to 2 U.S.C. Sec. 390. After an exchange of
correspondence between the US Attorney and the Contestant, the
Department of Justice failed to take any action against
Hermandad. Therefore, the Committee inquired as to the status
of the criminal complaint on June 23rd. The Department of
Justice responded on July 25th that the complaint was still
under review. Once again, the Department of Justice was
impeding the investigation of this contested election.
Therefore, the Committee reported to the House of
Representatives and the House passed H. Res. 244 calling upon
the Department of Justice to fulfill its responsibility to
enforce the provisions of the Federal Contested Elections Act.
The Justice Department has never prosecuted any entity for
defaulting on a lawful subpoena issued under the Federal
Contested Elections Act.
Without the assistance of the Executive Branch proper
adjudication of a contested election has been severely
hampered.
APPENDIX H: FEDERAL COURT DECISIONS FEDERAL COURT DECISIONS
Dornan v. Sanchez
federal court decisions
Among the most important advances that this particular
contested election made to promote the integrity of the
nation's elections are the several Federal Court challenges
that the Federal Contested Elections Act experienced.
The most significant Federal Court decision occurred on
September 23, 1997 that was issued from the US District Court
of the Central District of California. This court decision
arose from an attempt by Hermandad Mexicana Nacional to stay
the production of documents to the Contestant by the Orange
County District Attorney. The District Attorney's office seized
the documents pursuant to a search warrant. Hermandad
challenged the constitutionality of the FCEA's subpoena
provisions. The Contestee joined in the unconstitutionality
argument. In the interest of defending the prerogatives of the
institution, the House of Representatives filed an amicus brief
with the Court. Judge Taylor held in that decision that * * *
the deposition subpoena provisions of the Federal Contested
Elections Act * * * are constitutional.
Another significant court decision involving this contested
election occurred on March 13, 1997 that was also issued from
the US District Court of the Central District of California. In
this case, the Contestee sought relief from the Contestant's
subpoenas that were issued from the District Court. Ultimately,
Judge Taylor ruled that the blank subpoenas issued by the
Magistrate Judge were irregular on their face and they were
withdrawn. Any subsequent subpoenas would be issued by
application to the District Court itself. Finally, the Court
noted that ``Any future request to quash or restrict * * * a
Sec. 388 subpoena document demand should be directed to the
House and not the court. Based on this order the Contestant
issued several subpoenas.
APPENDIX I: INS PRODUCTION
Immigration and Naturalization Service Production
On April 24, 1997, the Committee wrote to INS Director
Doris Meissner requesting assistance from the INS. Nearly a
week later, the Committee wrote a letter to Attorney Janet Reno
to request assistance from the INS. However, on May 1st,
instead of providing the Committee the information it
requested, the INS wrote a letter to the Committee indicating
that the INS would decide at some future date whether and when
the INS would assist the Committee. The INS letter appeared to
reflect, almost point-for-point, the concerns expressed by the
Democratic Minority in a letter sent to the INS just days
earlier.
Faced with these obstructionist tactics, the Committee
issued two subpoenas to the INS on May 14th. These subpoenas
compelled the INS to assist the Committee with its adjudication
of the Contested Election in California's 46th District.
Over the next 6 months, the Committee made several requests
for additional information including naturalization status,
summaries of alien files, copies of signatures, and birthplace
information. Of the more than 20 information requests the
Committee made the INS completed only two of them within the
time requested by the Committee. In fact, the INS's continued
to deliver material to the Committee on the Friday after it had
dismissed the contested election, a month after the Committee's
deadline.
In total, the INS has produced 7,868 alien file summary
worksheets.
MINORITY VIEWS
I. Introduction
For the 30th time since the passing of the Federal
Contested Election Act (``FCEA'' or ``Act'') 1
nearly three decades ago, the House of Representatives was
asked to exercise the authority vested in it by the United
States Constitution 2 and make the final decision as
to a disputed election for one of its seats. No committee of
the House 3 faced with such an election contest,
even those where the margin of victory was as small as twenty-
one votes,4 had ever denied a contestee's motion to
dismiss, until this contest. And in nearly three decades, no
committee hearing a challenge brought under the FCEA had ever
failed ultimately to find for the candidate certified by their
state as the winner of the election.
---------------------------------------------------------------------------
\1\ 2 U.S.C. Sec. 281 et seq., P.L. 91-138 (1969).
\2\ U.S. Const. Art. 1, Sec. 5 (``Each House shall be the Judge of
the Elections, Returns and Qualifications of its own Members * * *'').
\3\ Challenges were previously heard in the former House
Administration Committee and/or a task force or ad hoc committee
appointed by the House.
\4\ Munster v. Gejdenson, (104th Cong.).
---------------------------------------------------------------------------
There are several reasons for this overwhelmingly
consistent precedent, including: the deference that the House
has shown to state election challenge procedures; the fact that
the FCEA places high burdens on contestants seeking to overturn
elections; and the clear requirement that the contestant do
more than make allegations of misconduct, but instead show
``credible'' evidence that the election result was erroneous
and that the state was wrong in certifying the winner. But
perhaps the most compelling reason why no challenge had ever
proceeded past the motion to dismiss phase had been the respect
that the House had shown for the democratic electoral processes
administered under constitutional authority 5 vested
in the states, and the recognition that only with great
hesitancy and compelling need should a small number of elected
federal officials eviscerate the voices of hundreds of
thousands of people expressed through the democratic process.
---------------------------------------------------------------------------
\5\ Art. 1, Sec. 4 (``The Times, Places and Manner of holding
Elections for Senators and Representatives, shall be prescribed in each
State by the Legislature thereof * * *'')
---------------------------------------------------------------------------
The American electoral process is not perfect, and this
election was no exception. But it is not its perfection that
makes our democratic system the envy of the world, it is
instead the fundamentally human--and thus sometimes imperfect--
nature of the process whereby citizens express their will,
through a system administered by citizens, whereby we choose
individuals who will govern us. In many ways this system is no
more perfect than the people who make it up at every stage, but
it is nevertheless the core of self governance.
There may have been mistakes, problems, or even
illegalities in the election in the 46th District of
California, as in many other elections. But our system provides
many ways of dealing with such problems without having a few
elected federal officials in Washington invalidate the people's
process. In this case, the District Attorney, the Secretary of
State, and the Immigration and Naturalization Service undertook
inquiries into allegations of misconduct or irregularities.
This is precisely where such inquiries should have properly
lay. Indeed, the Contestant in this case made no showing which
called for any appropriate action other than that undertaken by
these authorities.
While the Minority agrees with the result in this election
contest, we believe that the Majority failed to follow
established processes. As set forth below, the Majority
improperly calculated the number of allegedly ``illegal'' votes
cast in the election. They retained whole categories of votes
in their final number of disputed votes for which they could
not establish any ``illegalities.'' The Majority ignored
Committee precedent by failing to dismiss Contestant's notice
of election contest when he did not show any ``credible''
evidence that the outcome of the election should have been
different. Similarly, they disregarded precedent in refusing to
proportionally reduce their total number of disputed votes to
account for the inability to know for which candidate voters
cast the disputed votes.
II. Unfairness of Process/Procedural History
A. From The Outset The Majority Disregarded Minority Rights
Before and during the first Task Force meeting on February
26, 1997, the Majority misled the Minority and improperly
limited Minority participation in the investigation.
Prior to the February 26th Task Force meeting, Majority
staff advised Minority staff that the Task Force would grant
Mrs. Sanchez' Motion for a Definite Statement of Contestant
Dornan's claims. However, at the Task Force meeting, the
Majority resolved to postpone disposition of Mrs. Sanchez'
motion to dismiss until a hearing on the merits. This triggered
the FCEA's discovery provisions. In addition, the Majority
circulated an inaccurate agenda for the meeting. The agenda
reflected the staff discussions, but not the actions of the
Task Force. At that Task Force meeting, Chairman Ehlers
inappropriately ruled out of order Mr. Hoyer's amendment to
delete the phrase ``until a hearing on the merits'' and insert
``field hearing''--which would have achieved precisely the
result the Majority sought. Chairman Ehlers also denied Mr.
Hoyer's request to include Minority Counsel Roger Ballentine's
written recommendation in the record.
B. The Majority Did Not Provide Official Committee Documents To The
Minority
On March 3, 1997, the Minority learned from press accounts
that the Majority had not provided it with copies of official
documents filed with the Committee, including motions to quash
subpoenas. When confronted, the Majority apologized and
promised to promptly provide the Minority all documents filed
with the Committee. However, problems persisted. For example,
the Majority received the INS' motion to quash Contestant
Dornan's subpoena on April 15, 1997. On April 16, 1997, the
Committee met to consider pending subpoenas with the Minority
under the mistaken impression that the INS had not responded.
On April 19, 1997, theTask Force held its field hearing and
heard testimony from INS witnesses, with the Minority still under the
impression that the INS had not responded to the subpoena. In fact, the
Minority did not receive the motion until April 22, 1997--a week after
the Majority received it.
In addition, the Minority was refused access to materials
on the basis that confidentiality agreements were not signed by
Minority staff. However, on numerous occasions when this
requirement was asserted, the Majority staff themselves had not
signed such agreements.
Finally, the Majority withheld the receipt of Mr. Dornan's
final filings from the Minority even in the face of direct
Minority Member query.
C. The Majority Violated House Rules By Denying The Minority The Right
To Call Witnesses At The April 19, 1997 Field Hearing
House Rule XI states in pertinent part:
* * * * * * *
Calling and interrogation of witnesses
(j)(1) Whenever any hearing is conducted by any
committee upon any measure or matter, the minority
party members on the committee shall be entitled, upon
request to the chairman by a majority of them before
the completion of the hearing, to call witnesses
selected by the minority to testify with respect to
that measure or matter during at least one day of
hearing thereon.
* * * * * * *
The Minority has the right to call witnesses at any
Committee hearing, or to have a day of witnesses reasonably
contemporaneously with the hearing. The Minority's request to
call witnesses at the April 19 th field hearing was refused by
the Majority, and no Minority witness day was provided, in
violation of the Rule.
D. The Majority Denied The Minority Access To Materials Provided By INS
And The Orange County Registrar
On June 17, 1997, the Minority staff asked the Majority
staff for access to various Orange County (``Orange County'' or
``OC'') and INS computer tapes provided to the Committee. The
Majority staff consulted internally, then advised Minority
staff that access would be granted. On June 18 th, the Majority
staff e-mailed House Information Resources (HIR), instructing
them to make the Orange County and INS computer tapes available
to the Minority (a copy of the e-mail is sent to Minority
staff.) The next day, on June 19 th, Majority staff
countermanded its instructions to HIR to make the Orange County
and INS computer tapes available to the Minority. Minority
staff was not informed.
On June 23rd, Minority staff contacted HIR to arrange
access to the Orange County and INS computer tapes. At that
time, HIR advised Minority staff that the Majority had given
instructions not to give the tapes to the Minority. That same
day, the Majority staff director confirmed that the Minority
could not have access to the data unless the Ranking Minority
Member signed a confidentiality pledge on behalf of himself and
his staff.
E. The Majority Reviewed Materials Provided To The Committee Under Seal
Without Notifying The Minority
The Committee received sealed materials from the
organizations Dump Dornan and Naturalization Assistance
Services (NAS) pursuant to Contestant's subpoena. The Majority
reviewed those materials without providing notice to the
Minority.
F. The Discovery Process Has Been Unfair To Congresswoman Sanchez
The Majority permitted Contestant Dornan to issue subpoenas
for more than two months after his discovery period expired,
then cut off discovery for Mrs. Sanchez without having notified
her that her discovery ever began.
Specifically, Contestant Dornan's discovery period expired
on April 9, 1997--30 days after the Majority required Mrs.
Sanchez to answer Contestant Dornan's Notice of Contest.
Despite several motions to quash asserting that Contestant
Dornan's discovery period had expired, the Majority remained
silent, and permitted Contestant Dornan to issue subpoenas for
two more months. Finally, on June 12th, Chairman Thomas and
Chairman Ehlers wrote to Mr. Gejdenson and Mr. Hoyer stating
that Contestant Dornan's discovery ran from March 10th, to
April 9th, and that Sanchez'' discovery ran from April 10th to
May 10th.
Therefore, the Majority extended Contestant Dornan's
discovery period two months beyond the appropriate end date,
but ended Mrs. Sanchez'' discovery period before it ever began.
G. The Majority Provided Information To The INS, But Concealed It From
The Minority
Eleven of the Majority's information requests included
materials for INS to review. None of those materials were
provided to the Minority. In fact, the requests often were
crafted to prevent the Minority from determining what the
Majority wanted INS to look at.
At the Committee meeting on September 24th, Chairman Thomas
agreed to give the Minority the materials he gave the INS. As
of the date this report was filed, the Minority still has not
received the materials, or been apprised when the Minority
would receive them.
H. The Majority Made Secret Arrangements With The California Secretary
Of State
Chairman Thomas asked California Secretary of State Bill
Jones to verify the Majority's preliminary findings regarding
the citizenship status of registered voters in the 46 th
Congressional District. The Minority was not advised of the
request until Secretary Jones insisted the Minority be given
notice and an opportunity to participate.
On September 15th, Chairman Thomas asked Jones to
``verify'' the citizenship status of certain registered
voters in the 4th Congressional District. The Minority
was not notified of the request or provided with the
list of registered voters.
On September 18th, Secretary Jones advised Mr. Thomas
that he would assist the Committee only if: (1) the
Minority were advised of the request and kept informed
of the results of his efforts; and (2) the Privacy Act
permitted him to do so.
On September 22nd, Mr. Thomas provided Secretary
Jones with an opinion from the House General Counsel
concluding that the Privacy Act did not apply to
information provided to Secretary Jones by Congress.
The Minority received a copy of the letter--``the
Minority's first notice that Mr. Thomas had requested
Secretary Jones'' help.
The Majority negotiated a Memorandum of Understanding
with Secretary Jones concerning his handling of the
Committee's information without consulting the Minority
or providing the Minority a copy.
Majority staff scheduled a meeting with Secretary
Jones and INS to finalize arrangements for Secretary
Jones to verify the Majority's analysis. The Majority
did not invite the Minority, and canceled the meeting
when the Minority demanded to attend.
I. The Majority Failed To Consult The Minority Before Issuing
Interrogatories
On September 24th, the Committee resolved to permit the
Chairman to issue interrogatories in consultation with the
Ranking Member. On October 1, the Majority issued
interrogatories without any prior consultation with the
Minority regarding Majority interrogatories.
III. The Majority Has Consistently Misapplied the FCEA
The Federal Contested Election Act 6 provides a
procedural framework the Committee must follow in its
consideration of an election contest. In several instances in
the course of this contest, the Committee deviated from the
requirements of the Act.
---------------------------------------------------------------------------
\6\ 2 U.S.C. Sec. 381 et seq.
---------------------------------------------------------------------------
On February 26, 1997 the Task Force met to consider the
Contestee's Motion to Dismiss. By a vote of two to one, the
Task Force adopted a resolution: ``Resolved, the Committee will
postpone the disposition of Contestee's Motion to Dismiss until
a hearing on the merits.'' The event that the Majority referred
to as a ``hearing on the merits'' was a field hearing which the
Committee set for April in Orange County, California.
Under the FCEA, the Contestant may seek discovery for a
period of thirty days after the time for the filing of the
answer by the Contestee has expired.\7\ If the Committee
postpones the disposition of a Motion to Dismiss ``until the
hearing on the merits'', the Contestee's answer is due within
ten days of notice of such action.\8\ Therefore, by the
Majority's interpretation, the discovery period for Mr. Dornan
began ten days from this February 26th hearing.
---------------------------------------------------------------------------
\7\ 2 U.S.C. Sec. 386(c)(1).
\8\ 2 U.S.C. Sec. 384(d).
---------------------------------------------------------------------------
This action constituted a misapplication of the statute.
The statute provides that the parties' discovery period is
triggered if a Motion to Dismiss is postponed ``until the
hearing on the merits.'' \9\ However, the term ``hearing on the
merits'' refers to the hearing described in section 392 of the
Act, which states that ``contested election cases shall be
heard by the Committee on the papers, depositions, and exhibits
filed with the Clerk. * * *'' \10\ The Section 392 hearing is
the final hearing ``on the merits'' of the contest heard after
all evidence is gathered. The ``field hearing'', in contrast,
does not trigger any other actions under the Act and therefore
the Committee deviated from the Act by allowing discovery to
begin at this point.
---------------------------------------------------------------------------
\9\ 2 U.S.C. Sec. 384(d).
\10\ 2 U.S.C. Sec. 392(a).
---------------------------------------------------------------------------
The Committee also acted improperly after Contestee Sanchez
filed a Second Motion to Dismiss in response to a modified
Notice of Election Contest filed by Contestant Dornan. The
Committee did not meet and dispose of this second motion.
Instead, the Task Force Chairman unilaterally dictated that the
second motion also be postponed until the ``hearing on the
merits''. This action was improper because it was not the
``Committee'' taking action on the Motion, as required by the
Act.
The procedures for resolving a contest other than by
granting a motion to dismiss are laid in section 392 of the Act
and set forth the requirements for each side to present its
evidence before the Committee. The Committee must hear the
contest on the ``record'' of the case.\11\ The record includes
the ``papers, depositions, and exhibits that have been filed
with the Clerk.\12\ The ``papers'' shall include the
Contestant's brief, along with appendix; the Contestee's brief,
with appendix, and the reply brief of the Contestant.\13\ These
briefs and appendices are to be produced according to a strict
time frame laid out in the Act. The Contestant's brief is due
45 days after the discovery period for both parties has
ended.\14\ The Contestee's brief is due 30 days after the
service of the Contestant's brief.\15\ The Contestant's reply
brief is due within ten days of service of the Contestee's
brief.\16\ In deciding the case, the Committee must consider
portions of the record presented to the Committee and included
in the appendices to each parties' brief.\17\ These steps are
not discretionary under the Act, although the Contestant may
waive his right to a reply brief, and the Committee must
consider these materials after giving the parties' the
opportunity to produce such materials.
---------------------------------------------------------------------------
\11\ 2 U.S.C. Sec. 392(a).
\12\ Id.
\13\ 2 U.S.C. Sec. 392.
\14\ 2 U.S.C. Sec. 392(b).
\15\ 2 U.S.C. Sec. 392(e).
\16\ 2 U.S.C. Sec. 392(f).
\17\ 2 U.S.C. Sec. 392(b), (c).
---------------------------------------------------------------------------
Any disposition of an election contest other than in
accordance with the above schedule and process would be
contrary to the Act.\18\ Yet, the Majority appeared to be
contemplating a process of disposing of this contest that would
have been contrary to these requirements. The Majority failed
to compel the Contestant to submit a brief within the statutory
time limits. Although they were clearly short of what is
required by the Act, Contestant referred to his disparate
submissions in the aggregate as a ``brief''. The Majority
accepted this description and essentially waived the
requirement that Contestant submit a formal brief with
appendices. The Committee then required Contestee Sanchez to
file a brief in response to Contestant's bald allegations, as
if Contestant had filed a ``brief''. Thus, the Committee never
afforded her the opportunity to examine the evidence of the
charges against her.
---------------------------------------------------------------------------
\18\ Section 394(c) the Act grants the Committee the power to
extend time limitations. Thus, the Committee can call for the beginning
of the briefing schedule at any time, but it cannot shorten the time
period for providing such briefs and cannot deny the other party the
right to present briefs as called for in the Act.
---------------------------------------------------------------------------
IV. Majority's Misinterpretation of Evidence
The goal of determining whether non-citizens voted is, of
course, laudable and important. What is not justified, however,
is undertaking a faulty process using inadequate data, and then
grossly mischaracterizing the result. As explained below, the
Majority conducted an analysis that was faulty and that led
them to a number of votes that they characterized as ``illegal
non-citizen voters.'' Yet this number unquestionably contains
hundreds of voters who were clearly citizens at the time they
voted. The Majority would not deny this `` but they are willing
to obfuscate it. In addition, the Majority is at best sloppy
and at worse slanderous when it claims that ``two-thirds'' of
Ms. Sanchez's victory margin was due to illegal non-citizen
voters. Putting aside that many of the voters in this group
were citizens, we do not know, and never will know for whom
they voted. They did not come out of the margin of victory;
these votes can only fairly be apportioned against both
candidates.
A. The Majority's Own Analysis Shows Between A Quarter And A Half Of
The 624 Individuals Designated ``Documented Evidence Of Illegal Non-
Citizen Voting'' Were In Fact U.S. Citizens At The Time They Voted
The Majority stated that its analysis generated 624 cases
of ``Documented Evidence of illegal non-citizen voting.'' To be
charitable, this is a gross mischaracterization. Many
individuals in this category were U.S. citizens at the time
they voted in the 1996 election, although they registered to
vote in advance of being sworn in as U.S. Citizens. Some of
these ``non-citizens'' became naturalized citizens more than 20
years ago. Nonetheless, the Majority included both newly and
long-time naturalized U.S. citizens in the category ``illegal
non-citizen voting.''
B. The Majority's Process Of Assembling And Analyzing Evidence Was
Fundamentally Flawed From The Beginning
The Majority analysis began with a shotgun approach,
sweeping into its ``suspect voter'' category over 500,000
registrant name matches. The Majority attempted to refine the
number by including only 46th Congressional District registrant
names to be matched with INS files. This resulted in 136,000
matching names, which is more ``suspect voters'' than actual
voters in the 46th Congressional election in 1996. This again
suggests that the foundation upon which the Majority analysis
proceeded was fundamentally flawed.
INS data provided to the Committee came in two forms--the
electronic results of 20 separate requested database searches,
and the paper results of manual searches of over 8,000 INS
files in dozens of INS offices throughout the country. The INS
provided summary worksheets as well as 3,700 signature sheets
for the Committee. The Committee used these sheets to compare
to Orange County information and registration affidavit
signatures, as well as to other lists received by the
Committee.
The INS informed the Committee of the difficulty of using
INS data to prove citizenship status. For example, in a May 1,
1997 letter to Chairman Thomas, the INS stated:
INS databases are not organized for this purpose and
there are inherent limitations on their use to match
against lists of registered voters. For example, with
only two common identifiers--name and date of birth--
there is a potential for false `matches' and duplicate
matches for a single registered voter. Also the INS
does not typically update files of individuals after
they are naturalized. In addition, automated databases
do not necessarily contain records pertaining to
individuals who naturalized prior to 1973. Therefore,
records of long-time naturalized citizens would not
necessarily be easily retrievable from INS databases.
Finally, the INS does not, of course, maintain records
on native-born United States citizens.
In its May 21, 1997 letter to Chairman Thomas, the INS stated:
We emphasize to the Committee that, in light of the
methodology employed--conducting matches based only on
name and date of birth--and the organization of INS's
databases, the data on these tapes do not represent the
number of illegal voters or registrants in Orange
County, nor should it be inferred that any particular
named individual on this tape has voted or registered
to vote illegally. In fact, matches may occur with
individuals who reside outside the county or the state
of California. Since INS data have been assembled in
many places over many years in different formats, a
simple electronic match will not produce completely
reliable data.
* * * * * * *
For example, as you know, native-born U.S. citizens
do not appear in INS records. Any such citizens,
however, who have registered to vote in Orange County
may be placed on the ``match'' list if they share a
surname and date of birth with a non-citizen whose
records appear in CIS or NACS.
Throughout the remainder of its correspondence, the INS stated:
While the INS review of its paper files increases the
reliability and usefulness of the immigration and
citizenship status information being provided, paper
file review alone cannot establish whether an apparent
match between California and INS records does indeed
relate to the same individual.
As demonstrated above, INS cautioned the Committee from the
outset, and throughout the Committee investigation, that INS
records (both electronic and paper files) were not set up or
maintained in a way that the records could be effectively used
to confirm the naturalization status of voter registration
applicants in Orange County (or anywhere else), and in many
cases such records were out of date, incomplete, or no longer
available. Ignoring that caveat, the Majority proceeded to
analyze the information provided by the INS, which resulted in
the Majority's claim that it can document 624 instances of
``illegal non-citizen voting.''
Other material analyzed by the Majority (so far as the
Minority has been made aware) falls into a number of
categories: (1) the Lever list of names; (2) the Committee
lists of names; and (3) other lists of names.
Rosalyn Lever is the Registrar of Voters for Orange County,
California. The ``Lever List'' represents 124 U.S. citizens who
cast ballots in the 1996 election. These ballots consist of 98
absentee ballots, 22 double voted ballots, and 4 ballots from
improper addresses. These ballots were then delivered to the
Registrar of Voters by various individuals in the normal course
of the election. However, California law requires that absentee
ballot delivery may be effectuated only by certain means or
persons. In the case of 90 of the absentee ballots, it appears
that delivery was made by the wrong person. When an absentee
ballot is delivered by the wrong person, the Registrar can
remedy the non-compliant delivery by disallowing the absentee
ballot. Registrar Lever testified at the Committee field
hearing in California, however, that delivery would ordinarily
be treated as a procedural deficiency (as opposed to a
substantive violation), and in the absence of any other
extenuating circumstances, she would count such absentee
ballots to recognize voter intent. However, given the
circumstances attendant to this contested election, she
indicated that she would disallow such absentee ballots, if
called upon to do so.
The Committee lists represent numerous INS responses to
Majority requests for data matches using Orange County
registrants' names, and in some cases data matches using names
from other lists. The underlying premise of the Committee lists
is that everyone swept onto the list is a ``suspect illegal
non-citizen voter'' until proven otherwise to the satisfaction
of the Majority.
Other lists included: 19,000 alien registration numbers
obtained by the Committee from the Naturalization Services
Corporation, for which the INS provided matching information
fromits database; individuals who claimed a non-citizenship
exemption from jury duty from the Orange County Superior Court; names
provided by the Contestant's attorney; and persons who voted in the
46th Congressional District from Secretary of State Bill Jones. The
Minority was not made aware of the existence of any other lists or
information used in the Majority analysis.
c. a ``guilty until proven innocent'' methodology governed the
majority's analysis of the evidence
Starting from the assumption that anyone who had a name and
date of birth match with an INS record was a ``suspect voter,''
the Majority proceeded to weed out only those registrants whose
citizenship status the Majority could verify. This resulted in
an inflated pool of ``suspect voters'', largely consisting of
persons for whom incomplete or inaccurate INS data could not
confirm their citizenship status. Hence the Majority premise
was ``guilty until proven innocent''. This, of course, left
anyone for whom the Majority did not have proof of citizenship
in the ``suspect voter'' category, unless some other obvious
factor provided a basis for elimination (e.g., death). The INS
data, which the INS indicated were not set up to be used for
such comparisons, were not up to the task carried out by the
Majority. Still the Majority continued the sorting process on
the presumption that even a flawed match meant that the
individual remained in the ``suspect voter'' pool, until proof
of citizenship could be established.
Based upon a chart created by the Majority and used at the
Committee meeting called to dismiss the contest (and not seen
by the Minority before that meeting), the Majority somehow
winnowed its inflated ``suspect voter'' list down to a pool of
7,841 individuals. The Majority then designated 2,493 of them
as ``Suspect Registrants''.
At this point, the Majority finally addressed the key issue
to the election contest pending before the Committee. The
Majority eliminated 1,718 names of persons who did not vote in
the 1996 election, and who could not have affected the outcome.
All of the artificially inflated numbers previously reported by
Members of the Majority included persons who could not possibly
have affected the outcome of the election. This left, by the
Majority's calculation, 820 individuals who were in the
category of ``Suspect Registrant voted in the November 1996
Election.''
Of the 820 ``Suspect Registrant(s)'', the Majority chart
again summarily declared that the Majority had sufficient
evidence to place 624 ``Suspect Registrant(s)'' in the category
of ``Documented Evidence of illegal non-citizen voting'',
leaving the balance of 196 in the category ``Circumstantial
Indication of illegal non-citizen voting.'' The Majority then
added the 124 absentee and other suspect ballots on the Lever
list described above, and declared that there were 748 persons
for whom the Majority had ``Documented Evidence of Illegal
Voting''.
This number is flawed, just as the entire process of
analysis was problematic from the beginning. First, as
presented at the Task Force meeting, the Majority committed an
arithmetic error in calculating their final number. 2,493 minus
1,718 leaves 775, not 820, as the Majority chart shows. Thus
the Majority erroneously inflated its final number of alleged
illegal votes by 45. But more troubling is the fact that the
Majority has summarily declared that individuals are illegal
non-citizens voters before the INS had even completed providing
the Committee with signatures to match against Orange County
registrant affidavit signatures.
d. the majority's faulty analysis grossly inflated the number of
individuals on their suspect list
As mentioned earlier, many individuals termed ``illegal
non-citizen voters'' were U.S. citizens when they voted in
1996, although they registered to vote in advance of being
sworn in as U.S. citizens. There is no question about their
citizenship status--and the Majority would have to agree--these
individuals were citizens when they voted. Characterizing them
as ``illegal non-citizen voters'' is simply wrong. There are
several other defects in the Majority analysis discussed below.
First, the Committee's list of ``suspect'' voters who
allegedly ``match'' INS files likely includes names whose
alleged ``match'' is a person of a different gender. For
example, for 46th District voter Rose H______, the Committee's
INS ``match'' is Rosendo H______; for voter Phuoc N______, the
Committee's INS ``match'' is Mai N______; for voter Christine
K______, the Committee's INS ``match'' is Young
K______.19 To say the least, this raises serious
doubts about whether the Committee should consider these voters
``suspect''. These individuals may have become ``suspect''
because of the flawed methodology in the initial Committee
requests to the INS.
---------------------------------------------------------------------------
\19\ The individuals in each pair are of the opposite gender.
Throughout this Minority report the last names of all individuals whose
votes or citizenship status the Committee examined are represented by
the first letter of their last name followed by a ``______'', or simply
a ``______'', to protect the privacy of these individuals.
---------------------------------------------------------------------------
Second, the Committee's list of illegal ``suspect'' voters
potentially contains a significant number of names whose Orange
County Voter Records indicate that they were born in the United
States--regardless of what the INS records say (in fact, the
INS itself says that its records are totally unreliable for the
purpose for which they are being used by the Committee). For
example, on the Committee's list, an actual voter designated
here as Voter X was born in Canada in the Committee's INS
``match'', but in New York in Orange County records; Voter Y
was born in Mexico in the Committee's INS ``match'', but in
Colorado in Orange County records; Voter Z was born in Germany
in the Committee's INS ``match'', but in Illinois in Orange
County records. In several of the Committee's matches, both INS
data and Orange County data reported U.S. birth, e.g., Voter A
was born in ``state'' (meaning within the U.S.) in the
Committee's INS ``match'', and in Texas in Orange County
records. Can the Committee fairly include any of these names on
its ``suspect'' list?
Third, the Committee may have added to its ``suspect'' list
many names despite the fact that these persons in the INS
database have a different first name than their alleged
``match'' from the Orange County Voter Records. These names
should not be counted in determining a final number of improper
votes. For example, for 46th District voter Cesar R______, the
Committee's INS ``match'' is Noel R______; for voter Leonarda
G______, the Committee's INS ``match'' is Raquel G______; for
voter Lucus T______, the Committee's INS ``match'' is Hector
T______.
Fourth, dozens of the names identified by the Committee
from the INS databases have different middle names or initials
than their alleged ``match'' from the Orange County Voter
Records. These names should not be counted in determining a
final number of improper votessolely on that basis. For
example, for 46th District voter Maria Y. ______, the Committee's INS
``match'' is Maria E. ______; for voter Robert C. ______, the
Committee's INS ``match'' is Robert W. ______; for voter Cecile V.
______, the Committee's INS ``match'' is Cecile P. ______.
Fifth, the Committee may be carrying on its ``suspect''
list voters who, upon further review of INS records, would be
shown to be citizens because they had American parents, were
naturalized, or were citizens by birth. Clearly these
individuals should be removed from any suspect list.
Sixth, many voters on the Committee's ``suspect'' list
probably registered prior to November 1994, and some may have
been registered since 1956, even though they may have
registered before being naturalized. Should the Committee count
these U.S. citizens in its final number of improper votes when
they have been naturalized citizens for years?
Finally, dozens of the names on the Orange County Voter
Records match names of individuals who have no INS records. The
Committee may be assuming that they were not citizens at the
time they registered and voted. That is not a fair or
reasonable assumption.
In sum, a large number of the 624 individuals on the
``Documented Evidence of illegal non-citizen voting'' list
cannot be properly termed ``illegal non-citizen voters''--that
is, people who were not American citizens on November 5, 1996.
In fact nothing definitive can be concluded about most of these
people with respect to their citizenship status and right to
vote, either because the INS has not been able to locate a
signature in its records that can be compared to the signature
provided by the Orange County Registrar, or because the INS has
not located in its various computer databases and paper files a
naturalization date for these individuals. Without a legible
signature from both agencies, a signature comparison cannot be
conducted to determine whether the voter in Orange County is
likely the same person as the one in the INS file. Without a
naturalization date, it is impossible to determine when or if
the ``suspect voter'' became a citizen.
Does the failure of the INS to provide a signature and/or
naturalization date imply that the voter in question is in the
process of naturalizing but has not yet become a citizen, has
never applied for naturalization, has been rejected for
naturalization, or has illegally resided in the United States
and through lax registration procedures or bureaucratic
carelessness managed to vote? The answer is ``no.'' The
Majority knows this, though it conveniently omitted this
crucial qualification to inflate its final number. Instead the
Majority has apparently assumed the absence of these two pieces
of INS data means that these persons have not naturalized yet,
and may well have been illegal aliens on November 5, 1996, and
thus can be confidently classified as ``non-citizen voters.''
The crucial question, then, is what is the status of these
individuals if a significant number of them are not ``illegal
non-citizen voters'? The crucial answer that every Member of
this body must know before casting a vote on a resolution that
claims ``widespread voter fraud'' is that they could just as
easily be citizens of the United States. In fact, it could just
as easily mean that the voter in question, despite a foreign
sounding name that suggests he/she was born outside the United
States, was born in the United States and has never had any
reason to apply for citizenship with the INS. If a person was
born in the United States, the INS would not keep the kind of
files on him/her that the Majority has relied upon in its
investigation. The INS is not a central repository or library
that keeps track of every United States citizen either born in
this country or naturalized. It does not issue U.S. passports
or grant visas to Americans traveling to foreign countries. As
paradoxical as it may seem, a person's failure to appear in INS
records may constitute the strongest evidence the person is a
U.S. citizen.
Consider the following examples that illustrate why the
Majority figure should be greeted with great skepticism and the
charges of fraud in the resolution be removed. The names have
been blanked out and details altered to protect the privacy of
the individuals.
Example 1
One Mario R______, born in 1943, may appear on the
Majority's suspect list because (1) Mario R______ registered in
Orange County in 1992 and voted in the 1996 election; (2)
generated 7 ``matches'' from the INS when the Majority ordered
the INS to run the Orange County registration list against its
various databases; and (3) had an Orange County signature that
did not match 4 of the 7 signatures the INS had on file with
which timely naturalization dates were affiliated. The Majority
would conclude from this that since there was no signature
match with any of the 4 different Mario R______ signatures on
file, Mario R______ must be one of the three remaining Mario
R______s in the INS files `` all born outside of the U.S.--for
whom the INS cannot find a signature, but who naturalized after
November 5, 1996. In fact it is entirely possible that the
Mario R______ in Orange County is not any of the 7 Mario
R______s in the INS databases because he is a first generation
American citizen who was born to Cuban immigrants, and thus had
no need to apply for citizenship at the INS. Or one of the INS
files may be his simply because in 1990 he used his own U.S.
citizenship to sponsor the entry of a relative living in
another country.
As the INS explained to the Majority, ``(N)ative-born U.S.
citizens do not appear in INS records. Any such citizens,
however, who have registered in Orange County may be placed on
the 'match' list if they share a surname and date of birth with
a non-citizen whose records appear in'' INS databases'assume
that 10 matches result from a single name on the Orange County
voter rolls' it could be that none of the 10 identified INS
records corresponds to the person on the OC list because the OC
voter was born in the United States. Such a ``matched''
individual may unfairly be placed under suspicion as an
unauthorized voter'.'' 20
---------------------------------------------------------------------------
\20\ Excerpts from INS letter to Bill Thomas dated May 21, 1997.
---------------------------------------------------------------------------
Example 2
Similarly, a person by the comparatively uncommon name Huy
P, born in 1968, who registered in Orange County in 1986 and
voted in 1996, may generate a single INS match whose signature
matches the one in OC, but for whom no naturalization date can
be found. The Majority would conclude that since the Huy
P______ signature in the INS is the same as the Huy P______
signature in Orange County, and yet has no naturalization date
in the INS recordcontaining the signature, it must mean he has
yet to become a United States citizen and perforce should not have
voted. In fact Huy P______ may have generated an INS record because the
INS granted him a certificate of citizenship in 1982 when both his
foreign born parents naturalized. Or Huy P______ may have received a
certificate of citizenship from the INS because he was born overseas to
a parent who was born in the United States.
Example 3
Finally, one Daniel G______, born in Mexico in 1912, may
generate 3 separate INS files, all of whose birth dates match
the Orange County birth date, 2 of whose naturalization dates
fall between July 1, 1982 and October 5, 1996, but whose
associated signatures do not match the Orange County
registration signature. The third file may contain a signature
match, but have no naturalization date. The Majority would
conclude that Daniel G______ was not a citizen on election day
1996 and should not have voted. In fact Daniel G______ may have
immigrated to this country as a young boy in 1918, become a
citizen in 1953 while living in New York City, moved to Orange
County in 1977 and registered to vote in 1978, and voted for
Mr. Dornan in every race he has entered since 1980. Because of
the blank date, the Majority presumption seems to be that the
Daniel G______ has not naturalized and thus was not a citizen
on election day. In fact, it could mean that Daniel G______
naturalized long before the INS developed its computer
databases. The fact that the INS has no naturalization date
would mean that its New York City office misplaced his paper
file years ago.
The INS cautioned the Committee about this possibility
early in the Majority's review of files stating: ``(A)utomated
databases do not necessarily contain records pertaining to
individuals who naturalized prior to 1973. Therefore, records
of long-time naturalized citizens would not necessarily be
easily retrievable from INS databases. 21
---------------------------------------------------------------------------
\21\ Excerpt from INS letter to Bill Thomas dated May 1997.
---------------------------------------------------------------------------
E. The Minority's Analysis Is Based On ``Innocent Until Proven Guilty''
Methodology.
Owing to the fact that the Task Force Majority repeatedly
ignored suggestions by the Minority to combine staff resources,
develop a mutually acceptable research protocol, and analyze
all the INS and Orange County data in a spirit of cooperation
and bipartisanship, the Minority was left with no option but to
conduct a parallel analysis of the same materials, stretching
both staffs' resources and wasting as much as $1 million in
taxpayer money.
Unlike the Majority staff's premise, which imprudently
assumed every Orange County registrant with a corresponding INS
file was an ``illegal non-citizen'' until new information
emerged indicating otherwise, the Minority assumed that
apparent matches between the Orange County registration list
and INS databases did not impeach the citizenship status of
anyone until all the electronic and paper data provided by INS
and Orange County officials had been meticulously organized and
analyzed.
To that end the Minority prepared a ``blended'' computer
database that could be easily updated. The importance of an
updatable database cannot be overstated because the INS
regularly delivered to both staffs hundreds of pages of new
data gathered by field agents across the country from files
that were often many years old.
F. The Minority Protocol
The Majority confidently asserted, when it announced its
plan to compare OC records with INS databases, that in cases
where a suspect's first name, last name, middle initial/name,
and date of birth in Orange County matched those same criteria
in an INS database, odds were ``they had their man.'' After
all, what are the chances of more than one person sharing such
specific criteria?
Multiple Matches (when matches are NOT ``matches'')
This entire investigation has depended on two enormous
databases: (1) the Orange County Registrar's list, which
includes approximately 176,000 registrants in the 46th; and (2)
the various INS databases, which contain tens of millions of
people. Size alone all but guarantees numerous cases in which a
single person in Orange County will generate many ``matches''
with INS records, all representing different people who just
happen to share the same name and birth date. For example, a
person with the initials ``M.H.'' who registered in Orange
County generated 8 distinct INS matches, any or none of whom
may be the ``suspect registrant''.
To the dismay of the Majority, which promised that
comparing the two databases would resolve the contested
election swiftly, elegantly, and accurately, ``matches'' like
the one just cited were more the rule than the exception. The
bottom-line is that there is no way to tell if the OC person is
likely the person in the INS databases unless further steps are
taken, which the Minority has been carrying out since last June
and revising as the Majority has requested new information from
the INS, Orange County, and the California Secretary of State.
This has included signature samples and the list of 4,761
``suspect registrants'' the Majority sent to Bill Jones last
November and which the Minority treated as the total universe
of suspect voters when it received a copy on November 4, 1996.
Step 1: Creating the master database
The Minority established a master database consisting of
the following elements:
(1) the first names, last names, middle initial/
middle names, and dates of birth of Orange County
registrants who had a corresponding INS file;
(2) the Orange County affidavit number and the INS
alien number associated with each person in the
database;
(3) all naturalization dates the INS could find for
the people in question, including the naturalization
dates in INS records that the Majority omitted from its
initial instructions to INS because the dates indicated
they had naturalized before registering. Had it not
been for the Minority's protests, the Majority would
have excluded these essentialrecords from its analysis.
Make no mistake about it: if there is any doubt the Majority has
employed a presumption of guilty until proven innocent, it should be
dispelled by the fact that the Majority did not want to see INS records
that indicated the person in question had naturalized before
registering. As the INS stated to Chairman Thomas in correspondence
dated May 21, 1997:
Because Subpoena 1 instructs INS to report
only those records without a naturalization
date or showing a naturalization date after the
date of registration, INS dropped * * * records
showing timely naturalization. This instruction
reduces opportunities to recognize false
matches. Assume that 10 matches result from a
single name on the Orange County voter rolls,
with 5 showing naturalization before the date
of voter registration and 5 showing a later
date of naturalization or none at all. Pursuant
to the instructions, INS would have omitted
from its response to the Committee the 5
records of individuals who had in fact
naturalized in time. Yet, one of these omitted
records could actually correspond to the person
who registered to vote in Orange County.
It was not until the Minority specifically requested
such information in a letter to Chairman Thomas that
the Committee took the initiative to obtain the data.
(4) any hand-written notes from field agents
reporting cases in which naturalization dates could not
be found because the file for the person in question
had been lost;
(5) the date on which the person registered in Orange
County; and
(6) tags for probable signature matches, signature
mismatches, and indeterminate signature matches in
cases where both the INS and OC had supplied
signatures.
Step 2: Reducing the Database to Voters from the 46th
Congressional District
Since the Task Force's mandate was to uncover instances of
voter irregularities that may have affected the outcome of the
election, and not to uncover irregularities among OC
registrants who did not vote in November 1996, the Minority
removed from consideration all people in the database who
registered but did not vote in November 1996. To accomplish
this, the Minority used paper and computer materials provided
by the Orange County Registrar of Voters and Secretary of State
Bill Jones showing which registrants actually voted.
Step 3: Removing Signature Mismatches and Lost Files
On the assumption that the Majority would play by the rules
it promulgated when it ordered INS and Orange County to provide
signature samples to establish probable matches, the Minority:
(1) removed from the database the names of all the
persons whose Orange County registration signatures did
not match the INS signatures.
One feature that the Majority has yet to explain, and
which contributed to the misperception late in 1997
that as many as 2,474 illegal citizens voted in
November 1996, is why the Majority asked INS and OC to
provide signature samples for voters whose first names
and/or genders in the respective database were
unmistakably different. The Minority could understand
if the signature requests had been restricted to
suspects whose first name as reported by OC was
slightly different from the first name in the
affiliated INS file--for example, Maria C______ in
Orange County v. Marie C______ in INS, or John Q.
Public vs. John K. Public. But such minor differences
were joined with major differences for which no logical
explanation exists and that served only to prolong the
investigation--for example Gustavo A______ in Orange
County v. Pedro A______ in INS, or Jorge P______ in
Orange County v. Alberto P______ in INS.
Stranger still, the same suspect list contained
numerous cases in which not only were the respective
first names different--for example, Ramon A______ in
Orange County v. Teresa A______ in INS--but the genders
reported by the two agencies clearly supported the
distinction: male in OC vs. female in INS.
On the basis of these undeniable differences in the
Majority list sent to Secretary Jones, which suggest
the Majority staff carried out its research in a
careless and sloppy manner, the Minority has no
confidence in the accuracy of any ``suspect list''
created by the Majority. It is possible the Majority
removed these glaring differences in the Majority's
final list; then again it is entirely possible the
Majority did not. In light of the fact that the
Majority staff has denied the Minority access to the
list, we have no choice but to conclude the list
includes these obvious conflicts and cannot be relied
upon at all.
(2) removed all people for whom the INS reported it
could not locate a signature, or whose file the INS had
lost.
The Majority will claim that in cases of ``lost
files'' or ``no INS signatures on file''--and there are
many--it is justified in classifying individuals as a
``Circumstantial Indication of illegal non-citizen
voter.'' The Majority is trying to have it both ways.
On the one hand, it is using the INS-OC ``matches''
that include reasonably complete naturalization data
for its declared purpose of identifying ``illegal non-
citizen voters.'' On the other, it is interpreting
cases where a ``match'' generates incomplete
naturalization data as evidence that the voter in
question is not a citizen. To be an accurate test of
non-citizenship, the process of analysis the Majority
designed had to yield consistently clear-cut
naturalization information about each ``suspect
voter''. The Minority's experience was that the process
so frequently generated incomplete information that it
calls into question the integrity of the entire
process, and hence the accuracy of the final Majority
number.
Step 4: Refined Database: Cases of Apparent Signature
Matches
The Minority treated with great seriousness instances where
Orange County signatures appeared to match INS signatures.
Short of actually contacting a suspect voter and demandingproof
of citizenship and date of naturalization, signature comparisons are
probably the strongest indication of whether an INS record ``belongs''
to a ``suspect voter''.
Accordingly, the Minority developed a much smaller database
consisting only of people whose OC signature appeared to match
the INS signature.
Next, the staff compared the naturalization date associated
with the INS signature with the date on which the person
registered in Orange County. This procedure removed from
further consideration anyone whose naturalization date fell on
or before his/her registration date. In such cases, the
individuals were eligible to vote on November 5, 1996.
Step 5: Refined Database: Cases of Apparent Signature
Matches where Naturalizations Dates Fell after
Registration Dates or after Election Day
The Minority diligently repeated this systematic protocol
whenever new INS information arrived, thus keeping the
following categories up to date:
(1) Citizen Voters who Naturalized After Registering
Anyone whose naturalization date fell on or before
November 5, 1996, but whose registration date preceded
naturalization, was a U.S. citizen on election day.
However, the voters may have violated California's own
registration laws.
(2) Voters who Naturalized after Registering but
before Election Day 1996, and Registered before
Election Day 1994.
(3) Voters who Naturalized After Election Day.
Anyone whose naturalization date fell after November
5, 1996 was not a citizen on election date.
(4) Anyone for whom the INS could not locate a
naturalization date we remained silent on, pending
notification from the INS as to whether a
naturalization date was likely to be located.
Once again, the Majority will claim that pending
receipt of a naturalization date, a shadow of suspicion
hangs over any registrant/voter falling into this
category and therefore is ``circumstantially suspect.''
As the Majority knows, the absence of a naturalization
date is no indication whatsoever that the person in
question has not naturalized. All it means is that the
INS has not yet located the file containing the
naturalization date of the person, and may never find
the file because the person naturalized so long ago
that the record may be lost. Far from suggesting non-
citizenship, a blank naturalization date may just as
easily be the strongest evidence the person has been a
citizen for years.
G. The Majority Conducted Its Analysis In Secret
The Majority's decision to reject the Minority's olive
branch and conduct its investigation in secret, behind closed
doors, and without any input from the Committee's Minority
Members, has generated faulty, irresponsible, and unchecked
findings by the Majority that could have been corrected before
the Committee went public with its unsupportable claim of
``illegal non-citizen voting.'' It is essential to note that
the Task Force's Minority Member never saw the suspect list,
nor had the opportunity prior to the final meeting to ask his
Majority counterparts why they were confident the suspect list
is sound and unimpeachable. Efforts by the Minority Members and
their staff to study the list, which both the Task Force
chairman and the Committee chairman unconditionally promised to
the Minority following the adoption of the resolution, have
been blocked by the Majority staff. As matters now stand, the
Majority has announced an unsupportable number that can only
have a chilling effect on every recently naturalized citizen in
the 46th Congressional District, and the nation, who wishes to
exercise his or her right to franchise.
If the Majority had cooperated with the Minority during the
14 month investigation, or invited the Minority to double-check
its ``suspect list'' before publicly announcing its final
figure at the meeting, the Minority would have offered the
preceding critique.
The Minority's independent analysis demonstrates that the
Majority is wrong when it describes the 624 voters as
``Documented evidence of illegal non-citizen voting.'' For a
matter as sensitive as the charge that non-citizens cast
ballots in 1996, terms must be used with great care; in this
case, the Majority has shown great carelessness.
If the Majority had executed its analysis as thoroughly and
exhaustively as its counsel claimed in his testimony, using an
analytical protocol whose main steps included first keying into
their database all the hand-written naturalization data that
the INS provided to the Committee over the course of 8 months,
second determining if the newly entered naturalization dates
were subsequent to November 5, 1996, and third establishing a
probable signature match between a suspect voter's registration
signature and the INS signature associated with an individual
who naturalized after the election, they would have discovered
that only a fraction of the people on the Majority list who
voted on November 5, 1996 may have been non-citizens at the
time they voted.
We use the word may quite deliberately here because short
of an actual face-to-face interview with the suspect voter,
nothing can be concluded about a suspect's citizenship status
and right to vote in the State of California from all the
materials the Majority demanded from Orange County and INS.
Even probable signature matches between Orange County
registration ballots and INS records, which the Minority used
to reach its estimate, while perhaps the most reliable
indication of a match, do not constitute proof because of the
often poor condition of the photocopied signatures received
from the two agencies, the absence of a forensic hand-writing
expert to certify what may be a match, and other related
factors.
The Minority cannot emphasize enough that it no more
condones or minimizes the gravity of proven cases of ``illegal
non-citizens'' voting than the Majority does, be it 500 such
cases, 100, or 1. The fact remains, however, that nothing in
the process conducted by theMajority proves widespread voter/
registration fraud, and certainly nothing coming close to the 748 votes
they claim contributed to Congresswoman Sanchez's victory. Furthermore,
the Majority grossly mischaracterizes and slanders Ms. Sanchez's
election by suggesting that the ``illegal'' votes they have identified
came out of her margin of victory. We do not know for whom any
``suspect'' voters voted. The Majority cannot present a shred of
evidence that would support such an irresponsible characterization.
V. The Majority Did Not Follow Long-Standing Committee Precedent
A. The Majority Ignored Committee Precedent By Failing to Grant
Contestee's Motion to Dismiss At The Beginning of the Contest
1. The Burden of Proof Lies with the Contestant
The burden of proof in all stages of an election contest
lies with the contestant. This placing of the burden is, of
course, consistent with, and a product of, the very fundamental
deference paid to election results and the authority of states
to administer elections. That the burden lies at all times with
the contestant has, therefore, been made clear in the
precedents of the House: ``Under [the FCEA], the burden of
proof is on the contestant to present sufficient evidence, even
prior to the formal submission of testimony, to overcome the
motion to dismiss.'' 22
---------------------------------------------------------------------------
\22\ House Practice.--A Guide to the Rules, Precedents, and
Procedures of the House, Wm. Holmes Brown, 104th Congress, 2d Session,
U.S. Government Printing Office (1996) at 462, citing, Deschler's
Precedents Ch. 9 Sec. 35.7 (``Under the new contested election statute,
a contestant has the burden of resisting contestee's motion to dismiss,
prior to the submission of evidence and testimony, representing
sufficient evidence that the election result would be different or that
the contestant is entitled to the seat.'')
---------------------------------------------------------------------------
That the burden of proof lies with the contestant is
perhaps most significantly delineated in the seminal precedent
Tunno v. Veysey,23 an election contest out of
California, which was the first contested election decided
under the FCEA with a Report written by many of the authors of
that Act. In Tunno, a unanimous Committee on House
Administration stated that ``[u]nder the new law then, the
present contestant, and any future contestant, when challenged
by a motion to dismiss, must have presented, in the first
instance, sufficient allegations of evidence to justify his
claim to the seat in order to overcome the motion to dismiss.''
24 Mr. Dornan had the burden of overcoming the
grounds in Ms. Sanchez's motion.
---------------------------------------------------------------------------
\23\ H.R. Rep. No. 92-626 (1971).
\24\ Id. at 3; see also, Wilson v. Hinshaw, H.R. Rep. No. 94-761 at
3 (1975) (contestant has burden of proof that facts alleged occurred
and that such facts have changed the outcome of the election); Chandler
v. Burnham, H.R. Rep. No. 73-1278 (the burden of coming forward with
evidence to meet or resist presumptions in favor of election results
rests with the contestant) (discussed in 2 Deschler's Precedents, Ch.
9, Sec. 47.4 (1977)). While there has been virtually no disagreement
that the burden of proof must always lie with the contestant, there has
been some partisan disagreement as to the degree of proof required at
the motion to dismiss stage. See, e.g., Anderson v. Rose. H.R. Rep. No.
104-852 at 7 (1996), and citing Paul v. Gammage, H.R. Rep. No. 95-243
at 7, 9 (1977) (Republicans and Democrats disagreeing as to degree of
``particularity'' required in contestant's pleading).
---------------------------------------------------------------------------
2. The Task Force Did Not Consider the Credibility of Contestant's
Claims
In ruling on Contestee's motion to dismiss, the Committee
should not have simply assumed that Mr. Dornan's allegations
were true. Instead, the Committee should have evaluated the
``credibility'' of Mr. Dornan's allegations in determining
whether the allegations and proof offered were sufficient to
overcome the presumption that the state electoral result should
stand and the clear precedent that, in the absence of
substantial preliminary proof of misconduct, the contest
proceedings should have ended with Contestee's the Motion to
Dismiss.25 In some recent election contests, there
have been disputes as to whether a motion to dismiss should be
considered under a standard analogous to a motion to dismiss
pursuant to Federal Rule of Civil Procedure (FRCP) 12(b)(6) or
under a FRCP 56 motion for summary judgment standard. Under the
former standard, all facts as alleged by the claimant are
assumed to be true and if even after such an assumption the
claimant has not made a legally cognizable claim, the matter is
dismissed.26 Under FRCP 56, in contrast, the court
will rule against the claimant and end the case unless the
claimant has put forth an adequate and sufficient factual basis
for continuing the dispute.27
---------------------------------------------------------------------------
\25\ See Rose, supra, at 6-7; Tunno, supra, at 3.
\26\ See Fed. R. Civ. P. 12(b)(6).
\27\ See Fed. R. Civ. P. 56.
---------------------------------------------------------------------------
For most of the history of the Federal Contested Elections
Act, there was general bipartisan agreement that the standard
to be applied to a motion to dismiss was analogous to FRCP 56:
``under the [FCEA], the * * * contestant, when challenged by a
motion to dismiss, must have presented, in the first instance,
sufficient allegations and evidence * * * to overcome the
motion to dismiss.'' 28 In Anderson v. Rose, supra,
however, there was some dispute between Republicans and
Democrats as to the applicability of a FRCP 12(b)(6) versus a
FRCP 56 standard.29 Nevertheless, that dispute was
ultimately much ado about nothing, as even the Republican
majority made very clear that a FRCP 12(b)(6) standard will not
be implemented and that the evidence offered by the contestant
must be and will be evaluated at the motion to dismiss stage:
``a contestant must make credible allegations * * * the key
word in this text is ``credible'' * * * a contestant must
provide specific, credible allegations [to overcome a motion to
dismiss].'' 30 The majority report continued: ``[in]
judging whether a particular allegation is credible, a Task
Force should consider not only the contestant's view and any
supporting evidence, but any countervailing arguments and
evidence available from the contestee or other sources.''
31 Precedents representing both Republican and
Democratic views demonstrate that in evaluating the Contestee's
Motion to Dismiss the Committee should have considered the
``credibility'' or sufficiency of Contestant's evidence in
fulfillment of his burden.
---------------------------------------------------------------------------
\28\ Tunno v. Veysey, supra, at 3 (emphasis added); see Wilson v.
Hinshaw, supra, at 3-4; accord, Ziebarth v. Smith, H.R. Rept. No. 94-
763 (1975); Pierce v. Pursell, H.R. Rept. No. 95-245 (1977); Archer v.
Packard, H.R. Rep. No. 98-452 (1983); McCuen v. Dickey, H.R. Rept. No.
103-09 (1993).
\29\ Id. at 7.
\30\ Id. at 6,7 (emphasis supplied).
\31\ Id. at 7.
---------------------------------------------------------------------------
B. Contestee's Motion Should Have been Granted Because Contestant Did
Not Carry Forward A Claim to the Seat
Recognizing the need for the House to avoid becoming a
forum for frivolous election challenges of any and all
complaints as to any irregularity in the election process, the
drafters of the FCEA included a jurisdictional requirement to
ensure that only contestants raising legitimate outcome-
determinative claims would be heard by the House. Thus, only
contestants who can and do claim a right to a contestee's seat
may be heard. In the case at hand, where Mr. Dornan failed to
make a claim for Contestee's seat, the contest should have been
dismissed immediately upon examination of Contestant's initial
claim.
1. Statutory and Precedential Requirements
The FCEA requires the contestant to present a claim to the
seat. ``The notice of contest should also claim right to the
contestee's seat, as the contestee may, at his option, assert
the failure to claim right to the seat as a defense under the
provisions of 2 U.S.C. Sec. 383(b)(4).'' 32 In Tunno
v. Veysey, supra, the case was dismissed, in part, because the
contestant, by failing to even attempt to show how the
irregularities complained of resulted in his having been
wrongfully denied a victory in the election, ``[did] not carry
forward his claim to the seat.'' 33 Without the
critical claim that the irregularities or other matters
complained of resulted in the Contestant being denied an
otherwise rightful victory, the Committee on House Oversight
would become not a constitutional adjudicator of legitimate
election contests, but instead a mere investigatory committee
charged with uncovering various and sundry allegations of
election-related violations of state and federal law.
---------------------------------------------------------------------------
\32\ Deschler's Precedents, Ch. 9, Sec. 22.
\33\ H.R. Rept. No. 92-626 at 6.
---------------------------------------------------------------------------
2. Contestant Made Only ``Claims'' That Should Have Been Pursued in
Other Forums
In his Notice of Election Contest, the Contestant did not
allege that he won the election on November 5, 1996. The
Contestant similarly did not claim that he was entitled to
Contestee's seat. Therefore, the Contestant's contest should
have been dismissed for Contestant's failure to make a specific
claim for the seat in question.
This is not to say that the Contestant did not make claims
of any kind. Mr. Dornan raised numerous allegations about
potential violations of state and federal election laws and
procedures. While it was highly questionable whether any of
these allegations were based on adequate facts, it was,
regardless, the very nature of these claims that demonstrates
most clearly the very purpose of the jurisdictional requirement
that the contestant make a claim for the contestee's seat. All
other complaints regarding election irregularity should have
been, and in several instances were, pursued by other
authorities. However, the appropriate authority for such claims
is not the Committee on House Oversight pursuant to its
constitutional obligation to determine the ultimate victor in
an election contest.
Mr. Dornan's claim was not that he won the election--a
proper question under the FCEA and a proper question for the
Committee on House Oversight. Instead, Mr. Dornan complained
about alleged irregularities that at the time he filed his
notice of contest were being investigated by the District
Attorney and by the California Secretary of State. In addition,
the Immigration and Naturalization Service was involved
regarding potential matters within its jurisdiction, and had
federal criminal matters been implicated, certainly the
Department of Justice could have pursued such
allegations.34 These are the forums in which the
``claim'' made by Mr. Dornan could have been heard. The
Committee should not have confused Mr. Dornan's numerous
``claims'' with the important jurisdictional requirement that
he make a specific claim that he had right to be the
Congressman from the 46th District of California. By doing
otherwise, the Committee was needlessly burdened with
repetitive investigations and inquiries not contemplated by the
Federal Contested Elections Act that were contemporaneously
investigated by numerous other state and federal authorities.
---------------------------------------------------------------------------
\34\ Indeed, as the Committee on House Oversight did in the Rose
case, the task force could have granted Contestee's motion to dismiss
and passed the information provided by the parties to the Department of
Justice for review of potential election law violations.
---------------------------------------------------------------------------
C. Contestee's Motion Should Have Been Granted Because Contestant
Failed to State Sufficient Grounds to Change the Result of the Election
Even if Mr. Dornan had stated a claim to Contestee's seat
and had passed the jurisdictional threshold for this Committee
to consider this contest, the contest should have nevertheless
been dismissed because he failed to put forth sufficient
``credible'' evidence that if true would ``likely'' change the
result of the election.35 Mr. Dornan's allegations,
even if viewed in a more deferential light than required under
the FCEA, fell far short of this standard.
---------------------------------------------------------------------------
\35\ See, e.g., Anderson v. Rose, supra, at 6-7.
---------------------------------------------------------------------------
1. Applicable Standard
Numerous precedents make clear that Contestant Dornan had a
significant burden of proof to demonstrate that the matters he
alleged were based on credible evidence and that such conduct
changed the outcome of the election.36 The
Contestant's evidence had to overcome the presumptions that
official returns are prima facie evidence of the regularity and
correctness of an election and that election officials had
legally performed their duties.37 The Contestant
faces a high threshold in attempting to put forth such
``credible'' evidence as to the outcome of the election:
---------------------------------------------------------------------------
\16\ See, e.g., Wilson v. Hinshaw, supra, at 3-4.
\37\ See Chandler v. Burnham, supra, at Sec. 47-4; Gormley v. Goss,
H.R. Rep. No. 73-893 (discussed in 2 Deschler's Precedents, Ch. 9,
Sec. 47.9 (1977)).
---------------------------------------------------------------------------
It is perhaps stating the obvious but a contestant
for a contest for a seat in the House of
Representatives is a matter of most serious import and
not something to be undertaken lightly. It involves the
possibility of rejecting the certified returns of the
state and calling into doubt the entire electoral
process. Thus the burden of proof placed on the
contestant is necessarily substantial.38
---------------------------------------------------------------------------
\38\ Tunno, supra, at 10.
---------------------------------------------------------------------------
Mere allegations, such as allegations of fraud, are not
sufficient; a contestant must show evidence that the results of
the election changed because of such behavior.139
---------------------------------------------------------------------------
\139\ See, e.g., Rose, supra, at 6.
---------------------------------------------------------------------------
Similarly, as the Republican dissent noted in Young v.
Mikva, ``the motion to dismiss will be granted unless
contestant has made allegations sufficient to justify the
Committee's conclusion that grounds have been presented which
if proven would change the result of the election.''
40 In Pierce v. Pursell, supra, the Republicans
voted to dismiss where ``Mr. Pierce [was] unable to allege any
specific irregularities justifying the conclusion that the
result of the election was in error * * *'' 41
Another formulation of this standard by which the Committee
must judge Mr. Dornan's evidence was stated in Tunno v. Veysey,
supra. The Tunno case presented a set of facts that, while the
inverse of the case at hand, provide an identical flaw in the
Contestant's case. In Tunno, the Contestant claimed that
numerous person's registrations were disallowed and, impliedly,
that such persons would have voted for the
Contestant.42 Just as Mr. Tunno did not make the
necessary allegation that such voters would have voted for him,
Mr. Dornan did not show that such voters voted against him,
thus there was no adequate showing that the election outcome
would have differed. In dismissing the contestant's claim in
Tunno, the Committee noted that the requirement that the
contestant put forth ``substantiating evidence'' that the
election result was affected ``carries with it the implication
that the contestant will offer proof of such nature that the
House of Representatives acting on his allegations alone could
seat the contestant.'' 43 Contestant Dornan's
allegations fell far short of this standard, just as did Mr.
Tunno's.
---------------------------------------------------------------------------
\40\ H.R. Rep. No. 95-244 at 9 (1977).
\41\ H.R. Rep. No. 95-245 at 4 (1977) (supplemental views).
\42\ Mr. Dornan alleged that numerous people were registered who
should not have been, and impliedly, that such persons voted for Mr.
Dornan's opponent.
\43\ Tunno, supra, at 10.
---------------------------------------------------------------------------
2. Even Considered in a Most Favorable Light, Contestant's Initial
Allegations Were Insufficient to Change the Result of the
Election
As discussed above, in recent years Republicans and
Democrats have differed as to the degree and sufficiency of
proof that must be offered by a contestant in order to survive
a motion to dismiss. However, Mr. Dornan's allegations did not
satisfy either standard. In Anderson v. Rose, applying the more
contestant-friendly Republican standard, the Committee still
dismissed the claim even though the allegations called ``into
question the validity of more specific ballots than the margin
of victory'' * * * [because the] number of votes potentially
affected by credible allegations is far below [the
margin]''.44 Indeed, ``on numerous occasions where
allegations made in the contest were either vague, improbable
on their face, or insufficient even if true to place the
election in doubt, Republicans have supported dismissals.''
45 As demonstrated below, Mr. Dornan's allegations
regarding the number of votes that this Committee should have
considered to be in question are ``vague, improbable on their
face, [and] insufficient even if true to place the election in
doubt.'' 46
---------------------------------------------------------------------------
\44\ Rose, supra, at 12.
\45\ Id. at 11.
\46\ Id.
---------------------------------------------------------------------------
a. Contestant's Initial Numbers Failed to Satisfy His Burden
In his Opposition to Contestee's Motion to Dismiss,
Contestant cited numerous categories of votes that, because of
alleged irregularities occurring in registration and voting,
are somehow claimed to be tainted. Contestant implied that when
aggregated, the numbers overcame his margin of defeat.
Contestant attempted to aggregate these numbers despite the
fact that they were redundant, and despite the fact that some
of the numbers represented voter statistics across all of
Orange County (almost five congressional districts) without any
showing as to whether the alleged activities pertained to
voters in the 46th Congressional District, and for those that
might have, which candidate the votes might have affected. In
short, Contestant failed to show that the irregularities would
have produced enough votes in his favor to change the outcome
of the election.
b. Alleged Illegal Votes By Non-Citizens
Contestant referred to an affidavit filed in the course of
an investigation into the activities of an immigrants rights
group (``the Group'') by an investigator for the Orange County
District Attorney's Office which stated that the Group
illegally registered 227 non-citizens, of whom Dornan claims
148 voted illegally in the 46th District.47
Contestant offered no evidence that these individuals in fact
voted in the 46th Congressional District, or, if they did, for
which candidate they voted. Contestant also referred to 152
persons who were not U.S. citizens at the time they registered,
but who voted in the election after becoming
citizens.48 Similarly, the Contestant identified 102
foreign-born voters for whom the INS had no record of U.S.
citizenship.49 This number, of course, should have
been itself reduced since there was no evidence that the
persons voted in the 46th District, or as to how they voted.
Contestant cited the Los Angeles Times to claim that there were
431 current active ``students'' of the Group and that of these
individuals, 374 had been illegally registered and 220 actually
voted in the election.50 These 220 ``students'', who
may or may not have been immigrants pursuing citizenship, were,
at least in part, accounted for as part of the 148 or 102
figures, referring to non-citizen or no INS-record voters. This
figure was, in any event, redundant and if any ``students''
were in fact non-citizens at the time they either registered or
voted, they were accounted for in the above
numbers.51 Therefore, the sum total of all of Mr.
Dornan's initial allegations regarding the immigration rights
Group and allegations of illegal voting came to 402 voters, 102
of which may have voted in any one of five congressional
districts.
---------------------------------------------------------------------------
\47\ Contreras Affidavit at 30; Opposition at 7. Contestant cited
press accounts to allege that the Group processed 13,000 clients in
1996 and that of this number 10,000 attended classes at the
organization's Orange County offices. Opposition at 5. Contestant
contended that there was an ``overwhelming body of evidence'' to
suggest that the Group registered 10,000 to 13,000 individuals. Id.
This number had no relevance to the issue before the Committee and
enjoyed no credible support or documentation in the record.
Registrations are not votes counted on election day. In addition, there
was no evidence that the 13,000 registrations impacted upon the
election in question because there was no evidence to suggest that all
of these people registered for the 46th Congressional District. Orange
County covers all or part of five congressional districts, and the
Group was active throughout Southern California.
\48\ Opposition at 13.
\49\ Opposition at 7-8.
\50\ Id.
\51\ Even if these individuals represented all new, additional
illegal voters--which they did not, when added to the other numbers as
shown infra, the total was still short of the electoral margin (833-
979).
---------------------------------------------------------------------------
c. Discrepancy Between the Number of Ballots Cast and the ``Voted
Tape''
Without alleging how, if at all, it might affect this
election, Contestant contended that there were 1,985 more
ballots cast throughout Orange County than the number of votes
recorded on a ``voted tape''.52 In correspondence to
Contestant's counsel, the Registrar of Orange County, Ms.
Rosalyn Lever, addressed the apparent discrepancy between the
``voted tape'' and the actual ballots cast as recorded in the
``Statement of Votes.'' The Registrar noted that the ``voted
tape'' did not represent an actual record of all individuals
who voted in the election.53
---------------------------------------------------------------------------
\52\ Opposition at 10. As described by the Registrar, ``[T]he
``voted tape'' is a tape of voter history and is not utilized in the
official canvass. The ``voted tape'' is a computer product which is
created from a static file of active voter registrations as of 29 days
prior to the election and which are still active when the tape is
created after the election and who have voted in the election. As a
result, a number of legitimate voters and ``new citizen'' voters are
not included on the ``voted tape''. In addition, records canceled
between election day and the creation of the tape will not appear on
the ``voted tape''. Letter from Rosalyn Lever to William R. Hart,
Counsel to Robert Dornan, 3 (Jan. 17, 1997) (emphasis added) (submitted
as Exhibit 11 to the Opposition to Contestee's Motion to Dismiss)
(hereinafter ``Lever Letter'').
\53\ Lever Letter at 3. In order to be included on the ``voted
tape'', an individual must: (1) be a registered voter 29 days prior to
the election, (2) vote in the election, and (3) retain an active
registration for the period of time after the election until the voted
tape is created. Id. Lever also noted that staff review of the voted
tape indicated that there were 104,447 not 104,270 voter records on the
tape, for a total of 177 more voter records than the number provided by
Contestant in his correspondence to the Registrar and the Contestant's
alleged ``discrepancy'' must in the first instance be reduced by that
amount. Lever Letter at 3.
---------------------------------------------------------------------------
Lever pointed out that there were 666 ``white provisional''
voters under the National Voter Registration Act of
1993,54 that were not included on the
tape.55 These were proper voters and thus
Contestant's ``discrepancy'' should have been reduced. In
addition, the Registrar explained that there were 218 ``new
citizen'' voters who cast ballots. These voters registered
between 28 and 7 days prior to the election under a special
provision of California law and did not appear on the voted
tape because an individual must be registered 29 days prior to
an election to appear on the voted tape. These proper voters
also should have been subtracted from the ``discrepancy''.
Finally, there were 464 records that were canceled after the
election and prior to the creation of the voted tape so that
they counted as actual ballots, but were not included on the
voted tape.56 The Registrar attributed the remaining
460 vote difference to ``an average of two data entry errors
per consolidated voting precinct.'' 57
---------------------------------------------------------------------------
\54\ 42 U.S.C. Sec. 1973gg, et seq.
\55\ ''White provisional'' voters include voters who recently moved
into or within the 46th District and who were entitled to vote under
the National Voter Registration Act of 1993. Similarly, voters who are
erroneously recorded as having moved must be permitted to vote at their
usual polling place upon affirmation that they have not moved, and
would therefore show up as having voted, but not on ``voted tape''. 42
U.S.C. Sec. 1973gg-6(e)(3).
\56\ Id.
\57\ Id.
---------------------------------------------------------------------------
Contestant appeared to accept the majority of the
Registrar's explanations concerning the discrepancy between the
actual number of ballots and the ``voted tape'' and in his
Opposition to Contestee's Motion to Dismiss challenged only two
of her conclusions. Contestant claimed that all or a large
portion of the canceled records were due to the Registrar
canceling non-citizens registrations after they voted
improperly in the election. Contestant based this claim upon
information from an affidavit in the District Attorney's
investigation relating that a single non-citizen who voted in
the election had his registration canceled by the Registrar
after informing the Registrar himself that he was not a
citizen. From this single statement concerning one individual,
Contestant reached the astounding conclusion that ``[t]his
clearly suggests that all or a substantial portion of the 464
canceled records are a result of non-citizens voting whose
registrations were later canceled after the election.''
58 There is no other evidence to suggest that the
Registrar canceled records as a result of non-citizens
improperly voting in the election. In fact, the Registrar had
no ability to determine whether someone was a citizen or not.
Furthermore, the California Election Code and the National
Voter Registration Act provide for cancellation of
registrations for multiple reasons including: (1) most
commonly, notification that the registrant has moved; (2) a
request for removal by the registrant; (3) a criminal
conviction; (4) mental incapacity; and (5) subsequent death of
the registrant.59 Thus, the Registrar canceled
records during the period between the close of the 29-day pre-
election period and the time the ``voted tape'' was created for
numerous reasons other than improper voting by non-citizens.
---------------------------------------------------------------------------
\58\ Opposition at 10.
\59\ See 42 U.S.C. Sec. 1973gg; Cal. Elec. Code Sec. 2201 (West
1996).
---------------------------------------------------------------------------
Second, Contestant challenged Ms. Lever's explanation that
the remaining 460 vote discrepancy was the result of ``an
average of two data entry errors per consolidated voting'
precinct.'' 60 Combining the disputed figures for
the ``canceled records'' and the ``data entry error'' votes,
Contestant in his Opposition averred that there remained a 924
vote discrepancy between the actual number of ballots cast and
the ``voted tape'' measurement.61 But Contestant
obfuscated the fact that these ``data entry errors'' were not
errors made in conjunction with counting ballots, but only in
the creation of the ``voted tape''. In fact, a state recount
process, unchallenged by the Contestant, eliminated any
potential errors in the balloting process. Thus, the data entry
errors offer no evidence for Contestant.62
---------------------------------------------------------------------------
\60\ Lever Letter at 3.
\61\ Opposition at 11.
\62\ And even if they did, such random human errors would have been
counted equally against each of the candidates, resulting in a net
effect of zero votes.
---------------------------------------------------------------------------
d. Other ``Irregularities'' Claimed By Contestant
Contestant raised other ``irregularities'' concerning votes
cast in the election. These allegations were either irrelevant
to the vote total or constituted an insignificant number of
votes. Contestant claimed that there were 145 residences from
which six to twelve persons voted for a total of over 700
``suspect'' votes.63 The Registrar's staff
investigated these residences and found that they appeared to
be ``residences with multiple families or large family
groups,'' apartment complexes, or large residential
facilities.64 In any event, Contestant's claim was
irrelevant because he did not offer any suggestion as to why
votes from residences with six to twelve adults should count
any less than votes from residences with one or two adults, nor
did he allege that such voters did not vote for him. Thus,
there was no improper effect here on the election.
---------------------------------------------------------------------------
\63\ Opposition at 14.
\64\ Lever Letter at 2.
---------------------------------------------------------------------------
Contestant also alleged that the Group turned in 400
registration affidavits on October 7, 1996, the last day
permitted by law. 65 Once again, Contestant did not
indicate how this number affects the vote total for the
election. He may have intended to suggest that the Group held
onto registration affidavits longer than the three days
permitted under California law. Even if the Group held onto the
affidavits longer than three days, the proper remedy under
California law for such a violation would not have been to
exclude the votes of the registrants. 66
Furthermore, Contestant offered no evidence to indicate for
whom the registrants voted. He did not assert that any specific
votes should be counted or not counted due to these
registrations. Again, there was no impact here on the election.
---------------------------------------------------------------------------
\65\ Opposition at 15.
\66\ Cf. Cal. Elec. Code Sec. 2158(b)(1).
---------------------------------------------------------------------------
Contestant asserted that there were 39 voters who voted
from business addresses.67 The Registrar addressed
this issue in her correspondence to Contestant's counsel,
stating that her staff investigated these addresses and found
only two addresses that were not residences for a total of four
improper votes.68 Similarly, Contestant claimed that
there were 38 instances of duplicate registrations indicating
possible double voting.69 After investigation by the
Registrar's office, the Registrar concluded that there were
eleven duplicate registrations for a total of eleven voters.
According Contestant the benefit of the doubt, these 11 double
voters could have produced 22 votes. Once again, there was no
indication that these 22 votes were not cast for the
Contestant.70
---------------------------------------------------------------------------
\67\ Opposition at 14.
\68\ Lever Letter at 2.
\69\ Opposition at 14.
\70\ Lever Letter at 2.
---------------------------------------------------------------------------
Contestant contended that there were 128 absentee ballot
envelope discrepancies. The Registrar investigated these
allegations and determined that 60 ballots did not meet
requirements under California law and four were not properly
executed, for a total of 64 improper votes. Again, we did not
know, nor did the Committee ever determine, how these people
voted.
e. Contestant Did Not Demonstrate Any Irregularities In The Electoral
Process That Would Have Changed The Outcome Of The Election
As demonstrated above, Contestant's own numbers and figures
claiming irregularities and improper votes, numbers in no way
justified or conceded by Contestee, when put in the light most
favorable to Contestant, reduced to ``possible'': (i) 402 votes
by non-citizens, (ii) 464 ``canceled record'' votes, (iii) four
votes from non-residential addresses, (iv) 22 votes from
duplicate registrations and (v) 64 improper absentee ballots.
There are several reasons why these figures could never have
demonstrated that the outcome of the election had been placed
in doubt.
First, the categories were not mutually exclusive. For
example, the number of alleged non-citizen votes may have
represented some of the ``canceled record'' votes, ``non-
residence'' votes, ``duplicate registration'' votes or
absentees. This was true for each of the categories. Second,
each category of improper votes should have been further
reduced since we did not know for which candidate, if any, they
were cast. Third, in the case of the non-citizens, we did not
even know if they voted in the 46th District.
The Contestant and the Committee should not have assumed
that all questionable votes benefited Contestee. As discussed
in detail below, Committee precedent dictates that the
Contestant and the Committee should have allocated the votes in
question by proportionally reducing the questionable votes from
each candidate's total according to the proportion of voters in
each precinct who voted for each candidate in the
election.71 Proportional reduction would have
substantially reduced any total number of votes Contestant
Dornan claimed far below the number needed to question the
outcome of the election.
---------------------------------------------------------------------------
\71\ Anderson v. Rose, supra, at 7 n. 15 (``The House's precedents
allow for deletion of improper ballots by proportional and
deduction'').
---------------------------------------------------------------------------
Therefore, even assessing Contestant's evidence in a most
favorable light, it is a simple matter of arithmetic that there
is a lack of ``credible'' evidence that would ``likely'' change
the result of the election. The Committee should have granted
Contestee's Motion to Dismiss without delay.
D. The Majority Was Poised To Disregard Well-Established Committee
Precedent Requiring the Use of Proportional Deduction to Apportion
Disputed Votes
1. Introduction
The Federal Contested Election Act does not provide the
positive law to be applied by the Committee in rendering a
final decision in an election contest. The FCEA governs only
the process, and not the substance, in disposing of election
contests.72 Because the FCEA ``was meant to install
a procedural framework without changing substantive precedent
of the House,'' 73 in determining the rules and
standards to apply in evaluating the evidence gathered by the
Committee and reaching a substantive decision as to the
outcome, the Committee must look, with strong inclination
toward stare decisis, to House precedents.
---------------------------------------------------------------------------
\72\ The Act ``is strictly limited to setting up a procedural
framework for prosecution defense and disposition of an election
challenge * * *'' H. Rept. 91-569, accompanying H.R. 14195 cited in
U.S.C.C.A.N., 91st Cong., 1st Sess., 1969 at 1459.
\73\ See H. Rep. No. 104-852, 104th Cong., 2d Sess., Dismissing the
Election Contest Against Charlie Rose, at 8 (1996) (hereinafter
``Rose''.
---------------------------------------------------------------------------
The Majority presented ``documented evidence'' of 748
illegal votes upon approving a motion to dismiss to conclude
the election contest.74 The Majority continued to
present its evidence as if it only had to present a number of
votes greater than the Contestee's margin of victory to
demonstrate that the outcome of the election should be
questioned. However, there is no way to determine for which
candidates these voters cast their ballots. The Committee
75 cannot determine which voters cast improper votes
without violating the Constitutional and statutory provisions
protecting the secrecy of the ballot. Even if the individuals
agreed to disclose for whom they voted, this testimony might
not be accurate, as external factors could influence
individuals' public testimony to differ from the votes they
cast at the polls in secrecy. House precedents applying
remedies for treating irregularities in the votes cast in
previous elections indicate that, although there may be several
possible remedies for addressing contested votes, the Committee
would be required use the proportional reduction method to
reduce the number of suspect votes.
---------------------------------------------------------------------------
\74\ This number ignores the Majority's blatant arithmetic error
discussed above, whereby the Majority improperly inflated the number of
illegal votes by 45.
\75\ Throughout this portion of the Minority views the term
``Committee'' refers to the House Committee on Oversight and its
predecessors that dealt with election contests.
---------------------------------------------------------------------------
Under proportional reduction, the number of questioned
votes are reduced, precinct by precinct, in the inverse
proportion to the candidates' percentages in that precinct. For
example, if there are a number of votes from across a district
that are in question, and 10 of those votes were cast in
Precinct A, and in Precinct A there were 100 votes cast, with
candidate X receiving 80 votes (80 percent), and candidate Y
receiving 20 votes (20 percent), then you would subtract 8
votes (80 percent of 10) from candidate A's total of 80 and 2
votes from candidate B's total of20 to give a new vote result
in Precinct A of 72 votes for candidate X and 18 votes for candidate Y.
This process would be carried on for each precinct where questioned
votes were cast and then the votes totals across the district would be
added up to determine the winner of the election.
2. Prior Election Contest Precedents Indicate That Proportional
Deduction Is the Appropriate Remedy to Apportion The Disputed
Votes
In the most recent election contest considered by the House
of Representatives prior to Contestant Dornan's challenge, the
Committee on House Oversight discussed several potential
remedies available for contestants successful in ``establishing
convincing evidence of irregularities or fraud. * * *''
76 In that election contest, involving former
Representative Charlie Rose, the Committee set forth the
appropriate remedies for election contests as: (1) proportional
deduction of the improper votes; (2) exclusion of entire
contaminated precincts; or (3) ordering a new
election.77 It found that selection of the
appropriate remedy depended on whether the allegations could be
proven and the extent to which the alleged conduct impacted
upon the apparent victory of the contestee.78
---------------------------------------------------------------------------
\76\ See H. Rep. No. 104-852, 104th Cong., 2d Sess., Dismissing the
Election Contest Against Charlie Rose, at 7 (1996) (hereinafter ``Rose
Contest'').
\77\ Id. at 7-8.
\78\ Id. at 8.
---------------------------------------------------------------------------
Examination of the three categories of remedies as they
have been used in prior election contests demonstrates that
proportional deduction is the appropriate remedy for voting
irregularities caused by voters. In prior election contests,
the Committee excluded the returns of individual precincts only
where the facts demonstrated that election officials engaged in
improper conduct or evidence of irregularities strongly
indicated fraud. The Committee appears to have rarely, if ever,
formally recommended a new election and considers such a remedy
to be extreme in nature.
a. Requiring a New Election Would Have Been Inappropriate In the
Present Election Contest Because This Remedy Is Rarely Used And
It Was Possible to Determine The Winner Without Holding An
Entirely New Election
In the Rose Contest, the Committee stated that ``an
entirely new election is proper if the contamination of votes
makes the winner of the election virtually impossible to
determine.'' 79 This view was prefaced in Tunno v.
Veysey,80 where the Committee commented that:
---------------------------------------------------------------------------
\79\ Rose Contest at 7-8.
\80\ H. Rep. No. 92-626, 92d Cong., 1st Sess. (1971).
---------------------------------------------------------------------------
Declaring a vacancy in the seat is one of the options
available to the House of Representatives and is
generally exercised when the House decides that the
contestant, while he has failed to justify his claim to
the seat, has succeeded in so impeaching the returns
that the House believes that the only alternative
available to determine the will of the electorate is to
hold a new election.81
---------------------------------------------------------------------------
\81\ Id.
---------------------------------------------------------------------------
Thus, the limited precedents on declaring a new election
suggest that such action should only be taken where the returns
are so contaminated that an accurate determination of the
winner would be impossible. Use of this remedy requires
irregularities beyond even the high threshold required for the
exclusion of precincts. In several prior election contests, the
Committee believed that the violations of election laws were
substantial enough so that the true outcome of the election
could not be determined.82 However, the Committee
did not resort to the extreme remedy of ordering a new
election. This remedy has rarely, if ever, been used and the
present case does not represent the type of widespread fraud
that might justify such an extreme remedy.
---------------------------------------------------------------------------
\82\ See discussion of Chandler v. Bloom, Farr v. McLane and Paul
v. Harrison , in sections I.B, I.D, infra.
---------------------------------------------------------------------------
Most importantly, as discussed above, the Contestant did
not produce evidence indicating that there are sufficient
improper votes to change the outcome of the election.
83 Since such evidence has not been presented, the
Committee should not consider ordering a new election. In fact,
since the Contestant cannot establish that there are more votes
in question than the Contestee's margin of victory, he cannot
even support a claim that there exists any doubt as to the true
winner of the election. Such a situation is analogous to the
election contest of Salts or Major, where the Committee found
it unnecessary to consider any remedy because, even if all the
disputed votes were awarded to the Contestant, it would not
alter the outcome of the election.
---------------------------------------------------------------------------
\83\ Additionally, there appears to be a lesser percentage of
alleged improper votes in the present case than in previous cases in
which the Committee found that the outcome of the election could not be
determined. See discussion of Chandler v. Bloom, Farr v. McLane and
Paul v. Harrison, in sections I.B, I.D, infra.
---------------------------------------------------------------------------
b. Committee Precedents Dictate That The Remedy of Excluding Entire
Precincts Should Only Be Used When An Accurate Vote Count
Cannot Be Obtained Due to Widespread Illegal Activities or
Fraud
In general, the Committee has used the remedy of excluding
entire precincts when the extent of illegal votes affected the
total vote count in the precincts to a such degree that an
accurate count could not reliably be obtained. Unlike the
proportional deduction cases, these cases did not involve a
limited number of votes from precincts, but involve widespread
fraud or illegal activities, usually on the part of election
officials.
In Hill v. Palmisano,84 the Committee resorted
to excluding the votes of entire precincts after finding ``the
conduct of the election board in this precinct with respect to
the custody, count, tally, and certification of ballots was in
total disregard of and disobedient to the provisions of the
laws of the State of Maryland.'' 85 The Committee
found severe violations of state election laws including: (1)
false and fraudulent vote tally sheets; (2) the vote count was
unreliable and uncertain; (3) the vote count was tainted with
fraud because candidates' workers participated in the count;
(4) false and fraudulent returns; (5) the certificate of
election was filled out with blanks left before the polls even
closed; (6) unauthorized persons counted the ballots; (7) the
method of counting the ballots was unreliable and presented
opportunities for tampering; and (8) election officials
falsified returns with regard to state constitution and city
ordinance referendum questions on the ballot. The Committee
concluded that the opportunity to substitute ballots, coupled
with the desire to substitute ballots, was sufficient
justification to believe that some substitutions occurred. Most
importantly, the Committee believed that exclusion of the
precincts would serve as a refusal to condone election
officials' violations of the law.
---------------------------------------------------------------------------
\84\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 7.4
(discussing Hill v. Palmisano, H. Rep. 1901 Part 2, 71st Cong., 2d
Sess. (1930)).
\85\ Id. at 877.
---------------------------------------------------------------------------
The Committee also invoked the remedy of excluding entire
precincts in Chandler v. Bloom 86 where it found:
---------------------------------------------------------------------------
\86\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 4.2
(discussing Chandler v. Bloom, H. Rep. 224, 68th Cong., 1st Sess.
(1924))
---------------------------------------------------------------------------
* * * utter complete, and reckless disregard of the
provisions of the election laws of the state of New
York involving the essentials of a valid election, and
the returns of the election boards therein are so badly
tainted with fraud that truth is not deductible
therefrom, and that it can be fairly said that there
was no legal election held in said election districts.
87
---------------------------------------------------------------------------
\87\ Id. at 789.
---------------------------------------------------------------------------
The Committee detailed egregious violations of the state
election laws to support its conclusion including: (1) stolen
ballots; (2) improperly constituted board of election
inspectors; (3) persons voting multiple times; (4)
electioneering too close to the polls; (5) unsworn persons
handling ballots; (6) intimidation of poll workers; (7)
drunkenness by the head of the board of election inspectors;
(8) inspectors with knowledge of stolen ballots failing to
report such illegalities; and (9) torn, erased, and mutilated
ballots.
In Salts or Major 88 the Committee found it
unnecessary to decide the contestee's claim that an entire
precinct should be excluded because the contestee would win
regardless of whether the votes of the precinct were counted.
However, the Committee stated that precedent clearly supported
taking this action, since election officials had not placed the
registration number of the individual voters on their ballots
as required by state law.
---------------------------------------------------------------------------
\88\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 2.4
(discussing Salts or Major, H. Rep. 961, 66th Cong., 2d Sess. (1920)).
---------------------------------------------------------------------------
The Committee deviated from its traditional use of the
remedy of excluding precincts in the contest of Tague v.
Fitzgerald, 89 where the irregularities involved
illegal registration. Bar tenders, liquor dealers, and
municipal employees registered to vote, even though they did
not reside in the districts in which they registered, in order
to be able to vote on issues affecting their livelihoods. The
Committee excluded the returns of entire districts where the
vote was so tainted with fraud or irregularity that a true
count could not be taken, despite the fact that there was no
evidence of misconduct on the part of the election officials.
The Committee dismissed using the remedy of proportional
deduction because it believed: (1) the number of fraudulent
votes exceeded the number of legal proven votes in the
districts; (2) the conditions producing the fraudulent votes
did not cause them to be cast pro rata; and (3) it would
establish a bad precedent and inadequate remedy, especially
because it would result in the election of the contestant.
Eventually the Committee declared the seat vacant.
---------------------------------------------------------------------------
\89\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 2.1
(discussing Tague v. Fitzgerald, H. Rep. 375, 66th Cong., 1st Sess.
(1919)).
---------------------------------------------------------------------------
Prior election contest precedents do not support excluding
entire precincts from the vote count in the current contest.
This case does not involve fraud or misconduct on the part of
the election officials, as was the case in Paul v. Harrison,
Farr v. McLane, Hill v. Palmisano, Chandler v. Bloom, and Tague
v. Fitzgerald. Nor is there any evidence of widespread
disregard for the election laws of the state of California. In
the present case, unlike Tague v. Fitzgerald, the Contestant
did not allege that there were a greater number of fraudulently
cast votes than legally valid votes. Thus, excluding entire
precincts would have been too extreme a remedy to apportion the
disputed votes in the present contest.
c. The Committee Has Relied On Proportional Reduction In Analogous
Situations to Contestant Dornan's Election Challenge
Proportional deduction involves determining the number of
improper votes in a precinct and reducing the number of votes
from each candidate on a pro rata basis according to the
percentage of the vote each candidate received in that
precinct. In Oliver v. Hale, 90 the Committee
determined that 109 absentee and physical disability ballots
should be rejected on the basis of several different categories
of violations by voters--including the fact that a portion of
the 109 individuals were not registered or qualified to vote.
The Committee believed that it was not possible to match the
invalid absentee ballots to particular votes cast by identified
voters. Citing Committee precedent, the Committee proceeded to
use the proportional deduction method to apportion the votes in
question.
---------------------------------------------------------------------------
\90\ See Lewis Deschler, Deschler's Precedents of the United State
House of Representatives, 94th Cong., 2d Sess., H. Doc. No. 94-661,
Vol. 2, Ch. 9, Sec. 57.3 (discussing Oliver v. Hale, H. Rep. 2482, 85th
Cong., 1st Sess. (1958)) (hereinafter ``Deschler's Precedents'').
---------------------------------------------------------------------------
The Committee stated a ``general rule'' for using
proportional deduction in Macy v. Greenwood. 91 The
Committee found that the Board of Election Commissioners
properly determined that 932 votes challenged on the basis of
failing to meet a durational residency requirement were in fact
valid. However, the Committee stated that had it found ``the
932 votes illegally cast, the votes presumably would be
deducted proportionally from both candidates according to the
entire vote returned for each. This is the general rule when it
cannot be ascertained for which candidate the illegal votes
were cast.'' 92 The Committee also indicated that in
the absence of fraud, charges of irregularities as to
registration would not invalidate votes. In Roush or Chambers,
93 the Committee once again applied ``the general
rule in the House for deduction of illegal votes where it is
impossible to determine for which candidate they were counted''
94 to attribute 42 absentee ballots that had been
illegally cast. The Committee stressed its long history of
using proportional deduction in such circumstances.
---------------------------------------------------------------------------
\91\ See Deschler's Precedents, Vol. 2, Ch. 9, Sec. 56.4
(discussing Macy v. Greenwood, H. Rep. 1599, 82nd Cong., 2d Sess.
(1952)).
\92\ Id. at 572.
\93\ See Deschler's Precedents, Vol. 2, Ch. 9, Sec. 59.1
(discussing Roush or Chambers, H. Rep. 513, 87th Cong., 1st Sess.
(1961)).
\94\ Id. at 602.
---------------------------------------------------------------------------
The Committee used proportional deduction to apportion the
illegal votes of non-citizens in Bailey v. Walters,
95 including aliens who had never been naturalized
and would not disclose for whom they voted. The Committee
subtracted the votes of non-citizen voters who testified for
whom they voted from the appropriate candidates' totals. For
non-citizen voters who exercised their Constitutional right not
to disclose their vote, the Committee used proportional
deduction to attribute their votes.
---------------------------------------------------------------------------
\95\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 5.4
(discussing Bailey v. Walters, H. Rep. 1450, 69th Cong., 1st Sess.
(1926)).
---------------------------------------------------------------------------
Proportional deduction would have been the appropriate
remedy for attributing the disputed votes in the present
contest. In past election contests, the Committee has used
proportional deduction to attribute votes in similar situations
to the present contest. In Bailey v. Walters, the Committee
determined that proportional deduction was the proper remedy to
attribute the votes of certain non-citizens. Similarly, in
Oliver v. Hale and Roush or Chambers the Committee used
proportional deduction to attribute small numbers of absentee
ballots, 109 and 42, respectively. The 932 votes at issue in
Macy v. Greenwood, which the Committee could have attributed
using proportional deduction, are similar to the votes that may
be at issue in the present controversy because both situations
involve deficient registrations, while neither situation
involves fraud.
d. The Nature And Severity of the Alleged Election Law Violations
Required the Committee to Use the Remedy of Proportional
Deduction Rather Than the Exclusion of Precincts
In at least two election contests, the Committee used a
combination of the remedies of proportional deduction and
exclusion of entire precincts to resolve election contests.
These contests highlight the differences between the two
remedies and demonstrate why proportional deduction is the
appropriate remedy in the present contest. The Committee
rejected the votes of entire precincts in Paul v. Harrison
96 because ``there was such an utter, complete, and
reckless disregard of the mandatory provisions of the
fundamental law of the State of Virginia involving the
essentials of a valid election, that it can be fairly said that
there was no legal election in those precincts.'' 97
The Committee found that there were violations of the
Constitutional and statutory requirements of secrecy of the
ballot, laws requiring keeping the ballot box in view; and the
counting and disposition of ballots. While the Committee found
these violations to be egregious enough to warrant exclusion of
entire precincts, it indicated that instances of illegal
registration or the non-payment of poll taxes, where the
Committee could not determine for whom individual voters voted,
should be attributed using proportional deduction.
---------------------------------------------------------------------------
\96\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 3.6
(discussing Paul v. Harrison, H. Rep. 1101, 67th Cong., 4th Sess.
(1922)).
\97\ Id. at 770.
---------------------------------------------------------------------------
Similarly, in Farr v. McLane 98 the Committee
addressed an election contest containing a wide range of
violations including: (1) unregistered voters casting ballots;
(2) names appearing on the voted tape for persons who had not
cast ballots; (3) individuals voting who were minors or had not
paid the mandatory poll tax; and (4) the placement of
fraudulent ballots in the ballot box. The Committee found that
for the majority of the 1,006 illegal votes, there was no way
to determine for which candidate the votes were cast. It
determined that in the districts in which there was conclusive
evidence of fraud on the part of the election officials,
precedent justified rejecting the entire vote of these
precincts. The Committee emphasized that in these precincts not
only had persons been permitted to vote who had not registered,
but there was evidence of other fraud and collusion on the part
of election officials. Where there was solely evidence of
persons voting who had not registered, the Committee used
proportional deduction to reduce the votes of each candidate
pro rata.
---------------------------------------------------------------------------
\98\ See Deschler's Precedents, Vol. 2, Ch. 9 App., Sec. 2.7
(discussing Farr v. McLane, H. Rep. 1325, 66th Cong., 3d Sess. (1921)).
---------------------------------------------------------------------------
These contests clearly demarcate the line between the
remedies of proportional deduction and the exclusion of
precincts. Unlike the present contest, both Paul v. Harrison
and Farr v. McLane involved violations of election laws by
election officials. These violations contributed to an overall
disregard for the applicable election laws not present in the
current contest. In such instances, the Committee relied on the
exclusion of entire precincts. Contestant Dornan did not
suggest that California election officials violated applicable
election laws and thus the Committee properly did not resort to
excluding entire precincts.
Paul v. Harrison and Farr v. McLane also addressed the
issue of improper registrations, the only violation Contestant
claimed in the current contest. In both these contests, the
Committee determined that proportional reduction was the proper
remedy to apportion the ballots of voters who had improperly
registered. The Committee should have adhered to its
determinations in prior contests and used proportional
reduction in the present contest to apportion the disputed
ballots of voters who allegedly registered improperly.
VI. CONCLUSION
The Minority fully supports the dismissal of Contestant
Dornan's election contest against Contestee Sanchez. However,
we have strong concerns regarding the process the Majority used
to extend the election contest beyond the time warranted. The
costs of the election contest to the Contestee, Contestant, and
U.S. taxpayers exceeded one million dollars. The Contestee,
Contestant, and Committee spent valuable time and resources on
a matter that should have been resolved in a shorter time frame
and at considerably less cost. The Majority constantly denied
the Minority the basic courtesies of sharing information in a
timely manner and providing notice of Committee actions.
The Minority has strong concerns that this election contest
may establish an unwelcome precedent of extending election
contests beyond the stages of investigation of the claim and a
contestee's motion to dismiss. The Majority should have found
that Contestant Dornan's Notice of Election Contest did not
present ``credible'' evidence to survive Contestee Sanchez's
Motion to Dismiss. Inviting full investigations of any election
with close results will threaten our nation's democratic
processes. The Majority included numerous categories of voters
in its final number of suspect voters when they could not
establish that these voters cast illegal ballots. Their refusal
to share their analysis and establish a joint database to agree
on the status of individual voters made it impossible for the
Minority and Majority to work from an identical group of
suspect voters. Finally, even after reaching its final number
of suspect voters, the Majority did not recognize Committee
precedent and proportionally reduce these votes according to
the number of votes each candidate received in specific
precincts. The Majority's action in this regard could have
established a dangerous precedent of changing the outcome of an
election without regard to the true number of suspect votes
necessary to produce this result.
Sam Gejdenson.
Steny Hoyer.
Carolyn C. Kilpatrick.
APPENDIX A
County of Orange
General Services Agency,
Santa Ana, California, January 17, 1997.
William R. Hart,
Hart, King & Coldren, 200 East Sandpointe, Fourth Floor, Santa Ana,
California 92707
Dear Mr. Hart: Our office has concluded its review of the various
lists submitted by you on December 17, 1996. Though it would be
inappropriate to discuss individual voter records, I have provided
below summary data which should clarify and offer perspective on the
issues you have raised.
Business Addresses
Of the 50 addresses submitted representing 122 voters, 8 of the
addresses representing 29 voters were duplicated on your list. The
resulting 42 addresses representing 93 voters were reviewed by staff.
From that review the following was determined:
39 addresses representing 88 voters were locations which served as
the voters' residence and, therefore, met criteria for registering to
vote.
2 addresses representing 4 voters were locations which were not the
voters' residence. Those records are being forwarded to the District
Attorney for review and appropriate action.
1 address representing 1 voter was improperly entered in the
computer system. The address information has been corrected. Both
addresses were within the same ballot type for the general election.
Registration Indicating the Voter was Under Age
Two records were submitted which appeared to indicate the voters
were not 18 years of age at the time of election. After reviewing the
original and prior affidavits of registration, staff has determined
both individuals are over 18 years of age and the discrepancies were
caused by data entry errors.
Absentee Voter Records
Of the 128 records submitted, 5 records were duplicated on your
list. The resulting 123 records were reviewed by staff. From that
review the following was determined:
59 records appear to have met the basic criteria of absentee return
in person, by certain authorized relatives, or in emergency by a
designated representative.
60 records do not appear to have strictly conformed to the criteria
of EC 3017 but were executed by the voter.
4 records that the absent voter had not properly executed.
Duplicate Registrations Indicating Possible Double Voting
Of the 114 registration groupings submitted, 17 registration
groupings were duplicated on your list. The resulting 97 registration
groupings were reviewed by staff. From that review the following was
determined:
67 registration groupings, though appearing to indicate duplicated
records on your list, were actually separate individuals with similar
registration data.
19 registration groupings had duplicate records. However, after
reviewing original documents, information does not support the
conclusion that any of these voters actually voted twice. The duplicate
registrations have been canceled.
11 registration groupings, representing 11 voters, have been
referred to the District Attorney for review for possible Elections
Code violations.
Addresses with 6 or More Registered Voters
Of the 145 addresses submitted with 6 or more registered voters,
two addresses were also submitted and reviewed as part of the business
address list. Staff reviewed the remaining 143 addresses with the
following result.
127 addresses appear to be residences with multiple families or
large family groups.
11 addresses are apartment complexes.
5 addresses are large residential facilities.
Affidavits Potentially Held More than 3 Days Before Submittal to the
Registrar of Voters
Holding records for more than three days does not affect the
voter's eligibility to vote.
``Voted Tape'' and ``Statement of Votes'' do not Match
The ``voted tape'' is a tape of voter history and is not utilized
in the official canvass. The ``voted tape'' is a computer product which
is created from a static file of active voter registrations as of 29
days prior to the election and which are still active when the tape is
created after the election and who have voted in the election. As a
result the ``white provisional'' (NVRA Fall Safe) voters and ``new
citizen'' voters are not included on the ``voted tape''. In addition,
records canceled between election day and the creation of the tape will
not appear on the ``voted tape''. Some voted records will not
accurately reflect the method of voting.
The data you submitted was compiled by ``regular'' precinct and not
``consolidated voting'' precinct. This accounts for many of the
discrepancies in the detail portion of your list. Due to the nature of
the ``voted tape'' and the fact that the Statement of Votes is compiled
by ``consolidated voting'' precinct, this office will address only the
summary totals on your report.
The report submitted indicated 106,255 ballots cast on the
statement of Votes and 104,270 voters on the ``voted tape''. Staff has
reviewed our ``voted tape'' and has determined there are 104,447
individual voter records on the ``voted tape''. Therefore, that shall
be the base number used.
``Voted tape'' total.......................................... 104,447
``White provisional'' voters not included on ``voted tape''... 666
``New citizen'' voters not included on ``voted tape''......... 218
Canceled records not included on ``voted tape''............... 464
--------------------------------------------------------------
____________________________________________________
Total..................................................... 105,795
This leaves a difference between the ``voted tape'' and the
Statement of Votes of 460 records. The 460 records indicate an average
of two data entry errors per ``consolidated voting'' precinct.
The information you have submitted has been valuable in providing
an additional opportunity for this office to review various aspects of
our operation. Thank you for bringing your concerns to my attention.
Very truly yours,
Rosalyn Lever,
Registrar of Voters.
ADDITIONAL VIEWS
I concur in the Minority views which have been subscribed
to by my colleagues, Congressman Sam Gejdenson and
Congresswoman Carolyn Kilpatrick. Those views set forth what I
believe to be the appropriate precedents, previously enunciated
in cases dismissing contests filed by both Democrats and
Republicans. Those precedents were agreed to in most instances
by Republican Minority Members. In addition, the precedents
established by the present Republican Majority in Anderson v.
Rose, H. Rept. 104-852 (1996) were basically consistent with
those set under Democratic Majorities.
It has been clear over the last three years that the
Majority has been committed to lowering the threshold necessary
to overcome a contestee's motion to dismiss. That threshold has
been constructed to insure that the judgment of an electorate
would be challenged only upon a showing of ``sufficient
allegations and evidence,'' Tunno v. Vessey, H. Rept. 92-626
(1971), that the outcome of that election was other than the
election of the contestee. Such evidence must be more than
simple assertion or hearsay, it must be credible.
In my opinion, this case and the very bad precedent that
the Majority is attempting to establish is a direct outgrowth
of the outrage the Majority still harbors about the process and
decision in the McCloskey v. McIntyre case, H. Rept. 99-58
(1985). That outrage (see the additional views of Congressman
Bill Frenzel appended to the Minority views in the above House
report) has, I regret, led today's Republican Majority to do
exactly that which they strongly condemned then.
The Majority has repeatedly distinguished its handling of
this case and previous ones in the 104th Congress from what
they believe was the egregious and unjust ``stealing'' of the
election in the Eighth Congressional District of Indiana.
However, in many ways the procedures followed here more nearly
replicate the McCloskey process, which was not an FCEA case,
more than that established by the FECA. Essentially, the
Committee in this case became the moving party and
investigator. To that extent, the parties contrary to what was
contemplated by the FECA, became spectators and in fact, to
this very date, do not have the essential facts on which this
case is now being resolved. They, like the Minority, and the
public, have simply the conclusions drawn by the Majority from
the facts gathered by the Majority.
It would be unproductive to discuss the McCloskey case
here. However, I believe it useful to briefly review the
Minority (Republican) views in that case. They then complained
bitterly that McCloskey had not been required to pursue his
claim under the Federal Contested Election Act. In so doing
they said:
Under the FECA, a candidate contesting an election
must prove that the election result entitle him to the
seat, 2 U.S.C. Sec. 385. His allegations, the
equivalent of pleadings of law and fact, must show
(emphasis added) that, except for the grounds stated,
the challenged election results would have been
different.'' McCloskey v. McIntyre, House Rept. 99-58,
p. 50.
As has been pointed out in the Minority views here,
the precedents established and followed consistently
should have resulted in the granting of Congresswoman
Sanchez's Motion to Dismiss either at the Feb. 19, 1997
hearing or subsequent to the ``field hearing'' held in
California in April, 1997.
Instead, the Majority chose to embark on an unchartered
and, I believe, very unwise course in this case. They said they
did so to establish a precedent for going beyond a motion to
dismiss, which had never before been done in an FECA case. In
so doing, they pursued an ad hoc process which largely ignored
the process established in the FECA and denied due process to
both the parties. Indeed, at almost every juncture the Majority
trampled on basic fairness to the parties and to the Minority.
As a result, I am hopeful that this case will be viewed as an
anomaly in the future. At almost every stage in the Task
Force's deliberations, the Majority ignored the requirements of
the statute, the relevant precedents, and basic procedural due
process.
Throughout the course of this case, I urged the Majority to
work together with the Minority to establish mutually agreed
upon procedures as we engaged in areas of discovery and
considerations never previously undertaken under the FECA. The
Majority initially suggested (incorrectly) that meeting to
discuss such procedures might violate some uncited sunshine
law. When told that discussing such procedures in open session
would be welcomed, they simply demurred. Ironically, as is
pointed out in the Minority views, almost every decision in
this case was made unilaterally, secretly, and incorrectly.
However, the decision to dismiss, although late, was a correct
one.
The only area in which there was an effort to reach
decisions through open discussion between Majority and Minority
was with respect to the disposition and enforcement of Mr.
Dornan's subpoenas. It is not clear to me why that was the
exception. However, it convinced me that such bipartisan
discussions should absolutely occur in the future, if a fair
procedure is to be constructed and pursued in the future.
Historically, both parties have dealt with great care when
considering a contest to the election of a Member of Congress.
It is a grave constitutional responsibility. As such, it should
be considered in the most judicious and bipartisan way
possible. That was not done in this case. Therefore, although
the proper outcome was reached, the precedent established is of
no value to future Congresses. Indeed, I would urge that it be
rejected as a precedent for any case in the future.
I trust that in future cases both parties, whether in the
Majority or Minority, will work together to establish a
procedural framework in which this most serious matter can be
considered fairly and in a timely fashion.
ADDITIONAL VIEW
The legacy of the protection of voting rights for
minorities in the United States was a hard-fought battle that
saw its culmination in the adoption of the Voting Rights Act of
1965. Despite entreaties to the contrary, there has been no
demonstration from the Majority that any changes to our current
registration laws--proof or documentation of citizenship to
register to vote, or to allow states to require Social Security
numbers on voting registration applications--are needed or
necessary to ensure the accuracy and validity of our nation's
elections.
We all want open, honest and fair elections and
registration processes. What should not happen, as a result of
this decision, is the further disenfranchisement of voters by
even more restrictive registration requirements. This would
only be the beginning of the recurrence of poll watchers,
literacy tests, and poll taxes--other relics of a bygone era
that died with the adoption of the Voting Rights Act of 1965.
These, and other further and unwarranted restrictions upon the
voting rights of all hinder the progress and freedom of not
just minorities, but of all Americans.
Carolyn C. Kilpatrick