[House Report 110-176]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-176
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DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE TWENTY-FOURTH CONGRESSIONAL DISTRICT OF FLORIDA
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June 6, 2007.--Referred to the House Calendar and ordered to be printed
_______
Mr. Brady of Pennsylvania, from the Committee on House Administration,
submitted the following
R E P O R T
[To accompany H. Res. 461]
The Committee on House Administration, having had under
consideration an original resolution dismissing the election
contest relating to the office of Representative from the
Twenty-fourth Congressional District of Florida, report the
same to the House with the recommendation that the resolution
be agreed to.
DISMISSING THE ELECTION CONTEST IN THE TWENTY-FOURTH CONGRESSIONAL
DISTRICT OF FLORIDA
The Committee on House Administration, having had under
consideration an original resolution dismissing the election
contest against Tom Feeney, reports the same to the House with
the recommendation that the resolution be agreed to.
COMMITTEE ACTION
On, May 8, 2007, by a voice vote, a quorum being present,
the Committee agreed to a motion to report the resolution
favorably to the House.
COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee states that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
STATEMENT ON BUDGET AUTHORITY AND RELATED ITEMS
The resolution does not provide new budget authority, new
spending authority, new credit authority or an increase or
decrease in revenues or tax expenditures. Thus, clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
the provisions of section 308(a)(1) of the Congressional Budget
Act of 1974 are not applicable.
STATEMENT OF FACTS
On December 20, 2006, Clint Curtis (Contestant) filed a
Notice of Contest with the Clerk of the House of
Representatives pursuant to the Federal Contested Elections Act
(FCEA).\1\ Contestant ran as the nominee of the Democratic
Party for the office of Representative to the United States
Congress representing the Twenty-Fourth Congressional District
of the State of Florida in November 7, 2006 election. The other
principal candidate for the Twenty-Fourth Congressional
District was incumbent Republican Tom Feeney (Contestee). On
November 20, 2006, the Florida Elections Canvassing Commission
\2\ certified the results: Contestee received 123,795 votes and
Contestant received 89,863 votes, a margin of 33,932 votes. In
addition to the Notice of Contest, Contestant also filed an
election contest with the Circuit Court of Leon County on
November 30, 2006.
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\1\ 2 U.S.C. Sec. 381-96.
\2\ Title IX. Electors and Elections (Chapters 97-109) Sec. 102.111
(1) of the Florida Code provides that ``The Elections Canvassing
Commission shall, as soon as the official results are compiled from all
counties, certify the returns of the election and determine and declare
who has been elected for each federal, state, and multicounty office.''
The Canvassing Commission consists of the Governor and two members of
the Cabinet selected by the Governor.
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BASIS OF CONTEST
In his Notice of Contest, Contestant alleges that the
official election results for the Twenty-Fourth Congressional
District of the State of Florida are incorrect because of
alleged irregularities associated with the electronic voting
machines used in the election. Specifically, Contestant avers
that the electronic voting machines did not record accurately
the votes cast. In support of this argument, Contestant asserts
that the electronic voting machines produced unreliable and
incorrect results based on his belief that these machines were
hacked and the software manipulated. Contestant further
contends that an accurate count of the votes cast can never be
discerned because the electronic voting machines used in this
election were not equipped with a verified voter paper audit
trail. Contestant also contends that the failure of local
boards of election to put into place necessary procedural
safeguards compromised the election results.
STANDING
To have standing under the FCEA, a contestant must have
been a candidate for election to the House of Representatives
in the last preceding election and claim a right to the
contestee's seat.\3\ Contestant was the Democratic nominee and
his name appeared as a candidate for the Twenty-Fourth
Congressional District on the official ballot for the November
7, 2006 election, thereby satisfying the standing requirement.
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\3\ 2 U.S.C. Sec. 382(a).
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TIMING/NOTICE
The Notice of Contest appears to have been served upon
Congressman Feeney and filed within the prescribed time periods
of the FCEA.
RESPONSE BY CONTESTEE
On January 19, 2007, Contestee filed a Motion to Dismiss
Contest of Election in response to Contestant's Notice of
Contest challenging the results of the 2006 General Election
for the Twenty-Fourth Congressional District of the State of
Florida. Contestee maintains that the contest against him
should be dismissed because Contestant failed to claim a right
to the office and support that claim with specific credible
allegations of irregularities or fraud that if proven true
would be sufficient to change the result of the election.
STANDARD FOR GRANTING MOTION TO DISMISS
The House of Representatives has the constitutionally
vested power to judge its own elections.\4\ The FCEA sets forth
procedures under which a Contestant may bring a contest to the
House of Representatives. Under the FCEA, it is not sufficient
for a Contestant merely to allege irregularities or fraud in an
election. The Contestant must claim a right to the office.\5\
The contestant must support this claim with specific credible
allegations of irregularity or fraud that if proven true, would
entitle the contestant to the office.\6\ Unless a contestant
credibly claims in his Notice of Contest a right to the office,
the House of Representatives will dismiss the Contest.\7\
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\4\ U.S.C.A Const. Art. 1, Sec.
\5\ 2 U.S.C. Sec. 382.
\6\ See, e.g. Pierce v. Pursell, H. Rep. 95-245 (1977).
\7\ Anderson v. Rose, H. Rep. 104-852 (1996).
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ANALYSIS
To survive a motion to dismiss, Contestant must proffer
allegations that, if proven, would have altered the election
outcome. In his Notice of Contest, Contestant presented the
Committee on House Administration (Committee) with a series of
alleged irregularities in the conduct of the election that he
contends support his claim that he lost due to errors in the
administration of the election. These irregularities fall into
the following five categories:
1. Election Equipment
2. Polling Data
3. Election Administration Errors
4. Affidavit Progression
5. Software Source Code Disclosure
Although Contestant complains that the election was not
well conducted, those charges fall well short of credibly
suggesting that Contestant is entitled to the office. As
discussed below, those claims, taken individually or
collectively, provide no basis upon which the House of
Representatives could conclude that the Contestant is entitled
to the office. Contestant has not demonstrated to the
Committee's satisfaction that this contest is anything more
than a reflection of his general dissatisfaction with how the
election was administered. Lacking from his contest is a
credible claim that absent the alleged irregularities he would
have won the election. Contestant's claims are built on
shifting sands of speculation and conjecture and do not provide
a basis for the Committee proceeding with an investigation.
Election equipment
While Contestant identifies several problems in the
administration of the election that he contends may have
contributed to an inaccurate and unreliable election result, he
also maintains that a likely cause of his defeat was the
electronic voting machines used in the Twenty-Fourth
Congressional District. The voting machines used in this
election to capture the votes cast employed one of two
technologies: Direct Recording Equipment (DRE) and Optical
Scan. In describing the DRE voting machines used in the
election, Contestant maintains that these machines had an
obvious unexplained bias toward Contestee in the way votes were
recorded. The only evidence Contestant offers to support this
claim is the historical voting patterns in the district.
Contestant claims that he did not do as well as a hypothetical
Democrat in the district would do. The very nature of this
claim demonstrates how speculative it is. There are many
possible explanations for the purported variance and there is
no reason to believe that the DRE voting equipment accounted
for the difference. Contestant's claims regarding the optical
scan equipment are similarly deficient. Merely suggesting that
voting equipment may be subject to tampering or is not
inherently reliable is insufficient grounds for contesting an
election.
Polling data
Contestant relies on polling data collected in October
2006, a month before the election, to show that the race at
that point was within 2-3 percentage points. The fact that
there was a poll a month before the election suggesting that
Contestant was behind by a smaller margin than he eventually
lost by is hardly evidence that Contestant won the election.
Such evidence simply does not support a claim that Contestant
is entitled to the office.
Election administration errors
Contestant alleges that election administrators failed to
perform their duties properly and these failures affected the
outcome of the election. The alleged errors fall into two
categories: failure to implement safeguards and failure to
follow required procedures. Contestant asserts that certain
voting machines used in Volusia County, Florida, for the
Twenty-Fourth Congressional District were not properly
certified under Florida law. Even assuming that this allegation
was true, Contestant has failed to show that the outcome of the
election was affected by the failure to comply completely with
the certification process. To maintain a contest it is not
sufficient to simply assert, or even prove, that some state
laws or processes were not followed. Contestant must credibly
claim and support with specific allegations how the failure to
comply affected the outcome of the election. Contestant's claim
never amounts to more than conjecture and is insufficient to
support an election contest.
Second, Contestant claims that certain pre-election
procedures were not followed. Initially, he cites allegations
by individuals and organizations detailing incidents of voter
registration denials, missing or destroyed audit logs, and road
blockages and detours preventing voters from getting to the
polls. These allegations, even if proven true, do not justify
overturning an election that the Contestee won by a margin of
33,932. Next, Contestant argues in the Notice of Contest that
the integrity of certain ballots was compromised. In Volusia
County, Contestant claims that he discovered discrepancies
during a ballot inspection where certain seals on the ballot
bags were either missing or did not match up with numbers on
the ballot reconciliation forms. Again, Contestant has failed
to show the number of ballots affected comes anywhere close to
the margin by which he was defeated.
In addition to purported discrepancies with ballot bag
seals, Contestant alleges discrepancies exist between the
``Statement of Votes Cast'' and the ``All Voter Disk Data''
provided by the Volusia County Supervisor of Elections.
Contestant states that the statement of votes cast shows that
45,021 ballots were cast on Election Day, but the All Voter
Disk Data reflects only 44,773 people voting at the polls on
Election Day. While Contestant agrees that a 248 vote
difference is rather small, he still believes that the fact
that a discrepancy exists is an indication of greater problems
in the administration of the election in Volusia County. We do
not find that the claimed errors or misconduct, if proven true,
would change the election outcome.
In reviewing actions by election administrators, it is well
established that the Committee does not consider a mere claim
of election official error sufficient to sustain a contest
unless that error is of such magnitude that it likely affected
the outcome of the election. ``Our respect for the States and
State election officials mandates that these `assumptions of
regularity' not be discarded based solely on a `[c]ontestant's
bare allegations of irregularity,' election officials are
presumed to have acted in accordance with State law, and errors
will not be imputed without convincing evidence.'' \8\ While
there may be some administrative errors that occurred on or
before Election Day, the allegations cited by Contestant do not
cast sufficient doubt on the election results to merit this
Committee's further consideration.
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\8\ See Anderson v. Rose, H. Rep. No. 104-852 (1996) quoting McCuen
v. Dickey, H. Rep. No. 103-109 at 6 (1993).
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Affidavit progression and vote flipping
Contestant also claims that the software used to record the
votes contained malicious source code. Contestant believes that
the electronic voting machines used in this election contained
vote flipping software, hidden in the source code, to
manipulate the election results in Contestee's favor. Because
Contestant offers no factual basis for this claim, it must be
dismissed. Contestant's claim can only generously be described
as conjecture. Allowing contests to be brought on such claims
would overthrow the presumption of regularity that attaches to
the State elections process and would make every election open
to contest.
Software source code disclosure
Contestant suggests that proof of the alleged electronic
voting machines manipulation can be proven by examining the
software source code. The fact that an examination of the
source code might reveal it contained malicious software does
not relieve Contestant of his obligation to make a credible
claim that it does. If it did, all elections would be open to
challenge.
CONCLUSION
The Committee finds that Contestant has failed to make a
credible and specific claim that he is entitled to the office.
Contestant's claims amount to no more than raw conjecture and
speculation unsupported by specific and credible allegations of
irregularity sufficient to put into doubt the outcome of the
election. None of the cited irregularities associated with the
electronic machines or the administration of the Twenty-Fourth
Congressional District election justify the Committee
proceeding any further with an election contest. The Committee
finds that Contestant failed to meet the required burden under
the FCEA.