59–006 

110TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 110–178 

DISMISSING THE ELECTION CONTEST RELATING TO THE 

OFFICE OF REPRESENTATIVE FROM THE FIFTH CONGRESSIONAL DISTRICT OF FLORIDA 

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 

together with 

MINORITY VIEWS 

[To accompany H. Res. 463] 

The Committee on House Administration, having had under consideration an original resolution dismissing the election contest relating to the office of Representative from the Fifth 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 FIFTH CONGRESSIONAL

DISTRICT OF FLORIDA

The Committee on House Administration, having had under consideration an original resolution, dismissing the election contest 

against Virginia ‘‘Ginny’’ Brown-Waite, reports the same to the 

House with the recommendation that the resolution be agreed to. 

COMMITTEE ACTION

On, May 8, 2007, by 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) 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 RepVerDate Aug 31 2005 06:42 Jun 07, 2007 Jkt 059006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\HR178.XXX HR178

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1 2 U.S.C. Sec. 381–96 2 2 U.S.C. Sec. 382(a) 

resentatives, 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 January 3, 2007, John Russell (Contestant) filed a Notice of 

Contest with the Clerk of the House of Representatives captioned 

‘‘John Russell, Contestant, v. Virginia ‘Ginny’ Brown-Waite, 

Contestee’’ pursuant to the Federal Contested Elections Act 

(FCEA).1 Contestant was the Democratic nominee for the seat in 

the Fifth Congressional District of Florida on November 7, 2006. 

The other principal candidate for the Fifth Congressional District 

was incumbent Virginia ‘‘Ginny’’ Brown-Waite (Contestee). On November 20, 2006, the Florida Elections Canvassing Commission 

certified the results: Contestee received 162,421 votes and Contestant received 108,959 votes. The Florida Secretary of State Sue 

Cobb issued the Certificate of Election certifying the contestee as 

the winner of the Fifth Congressional District seat on November 

22, 2006. 

BASIS OF CONTEST

In the Notice of Contest, Contestant alleges that the official election results for the Fifth Congressional District of the State of Florida are incorrect because of purported irregularities associated with 

the electronic voting machines used the election. Specifically, Contestant avers that the electronic voting machines did not record 

votes cast accurately. In support of this argument, he asserts that 

the electronic voting machines produced unreliable and incorrect 

results based on a theory that these machines were hacked or had 

their data tabulations altered by electronic means. Contestant further contends that an accurate recount 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. 

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.2 Contestant was the Democratic nominee and his name appeared as a 

candidate for the Fifth Congressional District on the official ballot 

for the November 7, 2006 election, thereby satisfying the standing 

requirement. 


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TIMING/NOTICE

The Notice of Contest has been served upon Contestee and filed 

with the Clerk of the House of Representatives on December 20, 

2006. 

RESPONSE BY CONTESTEE

On January 17, 2007, Contestee filed a Motion to Dismiss Contest of Election in response to Contestant’s notice contesting the results of the 2006 General Election for the Twenty-First Congressional District of the State of Florida. In her motion, Contestee 

seeks to have the election contest dismissed based upon Contestant’s failure to timely file the Notice of Contest with the Clerk of 

the House of Representatives pursuant to the FCEA filing requirements. 

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 allegations that the electronic voting machines used in the election did not record votes accurately. In support of his assertions, Contestant relies on affidavits collected from voters in Precinct 151 in Pasco County, Florida. 

The official certified vote totals for Pasco County’s 151 precinct 

show Contestant receiving 35 votes and Contestee receiving 46 

votes. Contestant, after conducting his own canvass and affidavit 

gathering process of the individuals who had cast ballots in precinct 151, reveals that he received 41 votes while Contestee received only 40 votes. Contestant believes that because these 6 votes 

show a discrepancy in the Election Day vote totals, there is sufficient evidence to place in doubt the election results for Florida’s 

Fifth Congressional District. However, Contestee was certified as 

the winner of the election by 53,462 votes, far exceeding the 6 vote 

differential proffered by Contestant. The allegations cited by Contestant are unsubstantiated speculation and do not constitute 

grounds sufficient to change the result of the election. Even if Contestant can prove the facts in support of his claim, he has not provided evidence sufficient to entitle him to relief. 

Contestant also alleges that the intent of the voters and the vote 

tally could not be accurately discerned because the electronic voting 

machines used in the instant election were not equipped with a 

voter verified paper audit trail. In particular, Contestant argues 

that only with a voter verified paper audit trail: (1) could a voter 

determine whether the vote in which he or she cast reflected the 

vote that was intended to be cast; and (2) could election results be 

validated. The fact that Contestant would have preferred that voters be given the benefits of a verified paper audit trail adds no 

weight to his claim. 

In November 2006, numerous state and federal candidates were 

elected on electronic voting machines that were not equipped with 

a verified paper audit trail. For decades states have used mechanical and electronic voting equipment that does not provide for a 

paper audit trail. These systems have not been demonstrated to be 

inherently unreliable. States by law may choose to require a paper 


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audit trail but the mere absence of a paper trail is not a basis for 

setting aside an election. A contestant’s musing about the vulnerability of a voting system to hacking or fraudulent manipulation 

does not form the basis for a cognizable claim to the office. Such 

claims are in essence no different than a claim that the ballots 

boxes could have been stuffed in an election that used paper ballots. A notice of contest must contain specific credible allegation(s) 

of misconduct or irregularity in the election in order to overcome 

the presumption of regularity. 

CONCLUSION

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


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(5) 

MINORITY VIEWS 

While we agree with the majority that this election contest is 

wholly without merit, and should be dismissed without further 

delay, we submit these views because we believe that, in addition 

to the numerous substantive defects of this contest, its procedural 

failings are also fatal and sufficient to warrant dismissal on their 

own. Pursuant to the FCEA, a sufficient and timely Notice of Contest must be filed with the Clerk of the House and served upon 

Contestee before the Committee can proceed to review and make 

determinations regarding the allegations and grounds of an election contest. FCEA requires contestants to file their notice of contest with the Clerk of the House within 30 days of the election results having been declared. This rule allows members and their 

constituents to know the date beyond which the election can no 

longer be challenged. 

Section 382(a) of the FCEA: 

(a) FILING OF NOTICE.—Whoever, having been a candidate for 

election in the last preceding election and claiming a right to 

such office, intends to contest the election of a Member of the 

House of Representatives, shall, within thirty days after the 

result of such election shall have been declared by the officer 

or Board of Canvassers authorized by law to declare such result, file with the Clerk and serve upon the contestee written 

notice of his intention to contest such election. (emphasis 

added) 

Under Florida law, the Florida Elections Canvassing Commission 

is the body authorized to declare all election results. On November 

20, 2006, the Florida Canvassing Commission certified the results 

of the election for the Fifth Congressional District and declared 

Virginia ‘‘Ginny’’ Brown-Waite the winner, thereby triggering the 

30 day time period for filing an election contest with the House of 

Representatives. Accordingly, anyone wishing to contest the results 

so declared was obligated to do so by filing a contest with the Clerk 

on or before December 20, 2006. Though Contestant’s Notice of 

Contest and certificate of service is dated December 20, 2006, this 

is not the date it was filed. 

The transaction log for the vendor that handles mail delivery for 

the House of Representatives reveals that the Notice of Contest 

was not received by the House until December 28, 2006. It was not 

received by, that is filed with, the Clerk until January 3, 2007. 

This is outside of the 30–day window the statute allows for filing. 

Simply mailing the contest within the 30 day period does not constitute filing, and is not sufficient to meet the statutorily imposed 

deadline. 

While mailing does suffice for service of other kinds of pleading, 

it does not suffice for the initial filing of the contest. We believe the 

proper interpretation of FCEA requires the document actually be 


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in the possession of the Clerk within the prescribed period. Section 

382 clearly distinguishes between filing and service—requiring that 

a notice of contest be filed with the Clerk within 30 days and 

served on Contestee within this time period. This distinction exists 

for a reason and is reiterated in Section 384 which allows mailing 

within the required period to suffice for other pleadings, but explicitly states that that these modes of service are acceptable for pleadings other than the notice of contest: 

(a) Modes of service. Except for the notice of contest, every 

paper required to be served upon the attorney representing the 

party, or if her is not represented by an attorney or upon a party 

shall be made: 

* * * * * * * 

(3) by mailing it addressed to the person to be served at this 

residence or principal office. Service by mail is complete upon mailing. 

(b) Filings of papers with clerk. All papers subsequent to the 

notice of contest required to be served upon the opposing party 

shall be filed with the Clerk either before service or within a reasonable time thereafter. 

Obligating actually filing, as opposed to simply mailing, the notice of contest within 30 days allows all Members to know with certainty the date beyond which their elections can no longer be challenged. To allow contests filed after this date to be considered creates uncertainty for Members and extends the period in which they 

can be challenged. It also contradicts the plain language of the 

statute, and should not be permitted. 

VERNON J. EHLERS. DANIEL E. LUNGREN. KEVIN MCCARTHY. 

Æ 


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