MEETING TO DISCUSS MATTERS PERTAINING TO 

THE CONTESTED ELECTION IN THE 13TH CONGRESSIONAL DISTRICT OF FLORIDA 

MEETING 

BEFORE THE

COMMITTEE ON HOUSE 

ADMINISTRATION 

TASK FORCE FOR THE CONTESTED ELECTION IN 

THE 13TH CONGRESSIONAL DISTRICT OF FLORIDA 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

MEETING HELD IN WASHINGTON, DC, MAY 2, 2007 

Printed for the use of the Committee on House Administration 

( 

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/administration/index.html 


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COMMITTEE ON HOUSE ADMINISTRATION 

ROBERT A. BRADY, Pennsylvania, Interim Chairman 

ZOE LOFGREN, California 

MICHAEL E. CAPUANO, Massachusetts 

CHARLES A. GONZALEZ, Texas 

SUSAN DAVIS, California 

Vacancy 

VERNON J. EHLERS, Michigan 

Ranking Minority Member 

DANIEL E. LUNGREN, California 

KEVIN MCCARTHY, California 

LIZ BIRNBAUM, Staff Director 

WILLIAM PLASTER, Minority Staff Director 

TASK FORCE FOR THE CONTESTED ELECTION IN THE 13TH CONGRESSIONAL

DISTRICT OF FLORIDA

CHARLES A. GONZALEZ, Texas, Chairman 

ZOE LOFGREN, California KEVIN MCCARTHY, California 


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ELECTION TASK FORCE MEETING TO DISCUSS MATTERS PERTAINING TO THE CONTESTED ELECTION IN THE 13TH CONGRESSIONAL DISTRICT OF FLORIDA 

WEDNESDAY, MAY 2, 2007 

HOUSE OF REPRESENTATIVES, COMMITTEE ON HOUSE ADMINISTRATION, Washington, DC. 

The committee met, pursuant to call, at 10:33 a.m., in room 

1310, Longworth House Office Building, Hon. Charles Gonzalez 

presiding. 

Present: Representatives Gonzalez, Lofgren, and McCarthy. 

Staff Present: Liz Birnbaum, Staff Director; Charles Howell, 

Chief Counsel; Janelle Hu, Election Counsel; Matt Pinkus, Professional staff/Parliamentarian; Kristin McCowan, Chief Legislative 

Clerk; Robert Henline, Staff Assistant; Gineen Beach, Minority 

Election Counsel; and Fred Hay, Minority General Counsel. 

Mr. GONZALEZ. Good morning, everyone. I am going to call the 

first meeting of the task force on Florida 13 to order. And first I 

would like to place everyone on notice that Congressman Lofgren, 

who is chair of a subcommittee—is that correct? And that you have 

a mark-up, so we are going to try to get through this, but if she 

needs to report to the other committee, then we are going to make 

some accommodation. But I wanted you to understand that that is 

the situation today. 

The purpose of the meeting today is to answer the question of 

the next step for this particular task force, and that is, do we proceed at this point in time with the investigation of the election in 

Florida 13 back in November 2006? The chair will recognize himself for an opening statement of 2 minutes, and then I will go with 

Mr. McCarthy and then Ms. Lofgren. 

It is a simple question in many ways and a difficult one, though, 

in many other ways. We do know that the undeniable facts that everyone can agree on is that there was an 18,000 undervote in Florida 13 that constituted 15 percent of the ballots cast, which is very, 

very unusual. I think everybody knows something went wrong. The 

question was, what was the culprit? What was the reason—ballot 

design, the electronic voting machine malfunctioning and so on? We 

are also very aware of the pending litigation in Florida. And as I 

speak, I have not been notified that there has been any resolution 

to the question that was posed to the Florida appellate court. 

What is the proper role of this particular task force? And what 

is the prudent thing to do under the circumstances that we face 

this morning and today? My observation, of course, is simply that 

this task force has an independent and separate obligation and 


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purpose, separate from the judicial branch. Do we have precedent 

that basically the committee or a task force or any panel defers 

until the completion of any appellate review at the State level? You 

have some cases where that has happened. You have had other 

cases where that has not been the case. I think we are actually 

given free reign to make that determination that we believe will 

serve the best interest of the United States Congress and in particular the United States House of Representatives, which constitutionally is charged as being the final arbiter as to who will actually 

occupy a seat in that august body. 

I would like to proceed today, of course, with the opening statements, and then we will get into a discussion. We were scheduled 

for today’s meeting for 1 hour, and I would like to complete all action by then. But the first question truly is, what does this task 

force do at this point in time? Do we then initiate the investigation? Do we move forward? Or do we simply just have this holding 

pattern under which we have been operating for some time? With 

that, I will recognize my colleague, Mr. McCarthy, for his opening 

remarks. 

Mr. MCCARTHY. Well, thank you, Mr. Chairman. And I appreciate the opportunity to give opening remarks. The question is, do 

we move forward? And you want to analyze from the perspective 

of what the Chairman said; inside Florida 13, there were 18,000 

undervotes. There were also other races that had more undervotes. 

So there is a question, did something go wrong within there? If we 

look from what has gone further, we find that we have 433 members currently in Congress. They have all gotten here by having a 

certificate certified by the State. This is not the closest race inside 

the Congress. There were other races that were closer. The machines that were used, there were 11 other congressional districts 

inside Florida that use the exact same machines. And what did 

Florida do to look, to see, since the election took place, by certifying? They have had parallel testing. They did an audit with eight 

experts, Ph.D.s, looking within—having the source code, going 

through. I think from our meetings prior, we have found that Congressman Vern Buchanan, like all of us, shares the same presumption that each of us currently have, that we got here through our 

certification from the State, the background checks within. 

I think much of the history comes back and shows that it is the 

design of the ballot as you go through and look at this. I appreciate 

the work that this committee has done. In our meeting prior to 

looking back, getting the experts in, we have had the opportunity 

even from other bills within this committee to have one of the experts, the Ph.D.s, that did the independent study that came 

through. I think Florida has done a tremendous job of analyzing 

from the parallel testing to the independent audit to get to this 

conclusion as we go forward. But I appreciate you calling this so 

we can look into this and have this debate. Thank you. 

Mr. GONZALEZ. Ms. Lofgren. 

Ms. LOFGREN. Well, I will be very brief. The threshold issue is 

whether we proceed further or not, and I am mindful that the 

House has an independent obligation to determine its own membership and the validity of contested elections under the Federal Contested Elections Act and also under the Constitution. 


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Having said that, that doesn’t mean that we will—if we move forward—necessarily disagree with the state of affairs here in the 

House. I do note—and I would like to ask unanimous consent that 

it be made part of the record that, in the last Congress, the counsel 

for the committee, the House Administration Committee, sent a letter to the superior court of California, the County of San Diego in 

the Bilbray race, asserting that the State courts have no jurisdiction to act on matters. 

[The information follows:] 


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Ms. LOFGREN. Now, I put this in the record to say, you know, it 

is one extreme because I don’t believe that is the case. The courts 

do have a role, but it has been 6 months now. We don’t have a decision, and I think we need to sort through what happened. The 

18,000 undervote far exceeds the margin of victory of our colleague 

Congressman Buchanan, and we don’t know whether we will be 

able to find out what happened. But I think we need to try to find 

that out, honestly. I will say that I take the obligation of serving 

on this committee very seriously. I served on the Ethics Committee 

for eight years, and this is a similar type of obligation where you 

cannot act as a partisan. You have to act in the interests of the 

institution. And I will say, in the eight years that I served on the 

Ethics Committee, with the exception of one minor procedural vote, 

we had nothing but unanimous votes because all of us took that responsibility for the institution very seriously, and I do that in this 

obligation as well, and I am hopeful that whatever we decide today, 

that we will move forward in a way that is nonpartisan, that is fair 

and that keeps in mind our obligation under the Constitution and 

to this institution. And I appreciate being recognized for those brief 

comments, Mr. Chairman. 

Mr. GONZALEZ. Thank you very much, Ms. Lofgren. 

We will be operating under a 5-minute rule. It does not mean 

that we won’t have a second round of 5 minutes and such. But I 

was explaining this yesterday. I think all of us as Members of Congress once in a while are invited to be judges of high school debates 

many times, and the participants in the debate never know which 

side of the arguments they actually will be debating. And I actually 

like to proceed under that fashion. In other words, if we look at 

both sides, if we were proponents of not moving forward and if we 

were proponents of moving forward, and analyze it in that particular light. From the beginning, my big question, of course, has 

always been, if you are the contestant, the burden of proof rests 

with the contestant. At this stage, and after all these months, and 

I guess now the Florida appellate court has had the case pending 

for probably approximately 120 days or so with no resolution on a 

discovery point. There has been parallel testing, but it was at the 

direction of an interested party, and that has always been my biggest concern. And that is one part of the argument. What is gained 

by simply not moving forward at this point in time? Well, we could 

let the Florida court resolve it, send it back to the trial court and 

any of us that are familiar with court proceedings understand the 

cost that is involved and, further, the time that is going to be required to—if in fact the appellate court directs a trial judge to 

allow the contestant, in that case, the plaintiff, to conduct their 

own testing under certain confidentiality requirements on trade secrets. I have never been involved in any proceeding where an interested party to a lawsuit is the only party that is allowed the direction of the testing, the selection of the experts and so on. As a general rule, both sides would get that opportunity, and in a final 

analysis, if the court is truly confused by the conflicting testimony 

of the experts, you do bring in someone to assist you. I am not real 

sure when you take up the proposition that we do nothing of where 

that gets us. There is an open question today. When I was a young 

person, and I went to the State senate to watch my father, and we 


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would go to the University of Texas, which I eventually attended, 

inscribed over the threshold is, ‘‘And the truth shall set you free.’’ 

and I remember the discussions with my father, and I said, if the 

truth should set us free, why are you filibustering against Jim 

Crow segregationist laws? And what he told us many times, the 

truth that we seek is only to remove doubt, to give some certainty 

so that you move forward. And that is the way I view the role of 

this task force. What is to be gained if we move forward without 

specifically indicating in what manner? Because that is the second 

question. I think some resolution, and what we set people free from 

will be free of doubt and free of uncertainty. 

The election took place in November 2006. We are now into May. 

It is a 2-year term. My position is simply, I don’t see what is to 

be gained by delay, but I am still open to an argument as to why 

that would be advantageous and beneficial to the House of Representatives and of course our obligation as a task force with this 

particular committee. 

Ms. LOFGREN. Mr. Chairman. 

Mr. Chairman, could I offer a motion, and then we will debate 

this? Because the threshold question is whether to proceed; and 

then, if we decide to proceed, how to proceed. I would move that 

the task force initiate an investigation of Florida’s 13th Congressional District election. 

[The information follows:] 

ELECTION TASK FORCE MOTION #1—INITIATE AN INVESTIGATION

MAY 2, 2007—ADOPTED BY VOICE VOTE

(Offered by Zoe Lofgren) 

I move that the Task Force initiate an investigation of Florida’s 13th Congressional District election. 

Mr. GONZALEZ. Okay. Well, the motion on the floor then obviously addresses that first question. And I would yield to either of 

my colleagues. 

Ms. LOFGREN. If I may speak in favor of the motion just briefly, 

and I do want to hear from our colleague, Mr. McCarthy. There has 

been some review of the code. We are aware of that. But there is 

additional testing that has not been done, and that is the point of 

contention in the Florida court on what amount of testing can be 

done. It seems to me that since it is May 2 and this election happened in November, that it is important to—as the Chairman has 

said, to reach a conclusion on this matter. This is a 2-year term 

and we are 6 months past the election time. I have had a chance 

to review the precedents and to note that the Congress has not routinely deferred to State courts when there was a contest. And in 

the case of the 105th Congress, Dornan v. Sanchez, there was no 

State judicial action. In Young v. Mikva, the House proceeded even 

though the Illinois Supreme Court was pending. And it is very 

clear that, although State courts can sometimes be of value to the 

Congress, it is not a presidential requirement that we wait forever 

for courts to act. I would hope that if we proceed, if this motion is 

successful, that we might develop protocols and get whatever additional testing is done and reach a conclusion if all goes smoothly 

very promptly. I think in the briefing that we attended, there was 

a proposal that all of this could be done in 45 days if things go 


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smoothly. And obviously, I think, if that could happen, that would 

be a very good thing just to be able to get some dispassionate review of this and resolve it and get it behind us would be I think 

the right thing to do. So I don’t think there is any additional purpose to defer to the State proceedings. There is no indication that 

they are going to act. They have not acted yet, and the action is 

actually a procedural motion that proceeds further action. And so, 

therefore, I think this is the right thing to do. It is a wise thing 

to do. And I think, in the end, if this motion succeeds, I will have 

an additional motion that I hope would get the support of every 

member because this has got to be done properly, and I thank the 

gentleman for yielding. 

Mr. GONZALEZ. Mr. McCarthy. 

Mr. MCCARTHY. Mr. Chairman, if I could first ask a couple questions without taking the 5 minutes from the standpoint of just 

some personal inquiries, one that I had asked from the last meeting we had. Just to clarify, because creating this ad hoc committee, 

at times we use different phrases, and letters that I have received 

and knowing I am just a freshman, I just want to make sure. Ad 

hoc and task force are the same words, is that correct, from the 

standpoint—— 

Mr. GONZALEZ. My understanding—— 

Mr. MCCARTHY. Definition-wise. 

Mr. GONZALEZ. The letter that created this particular body refers 

to it as a task force, and so I have continued using that terminology. We could call it an election panel and so on or ad hoc panel. 

But my preference is we call it a task force only because our beloved past Chair Juanita Millender-McDonald, that was the term 

that she used in her letter, and I would like to keep to that. So, 

legally speaking, I think your question really goes to—— 

Mr. MCCARTHY. I am just trying to redefine. Do actions taken 

here, do we go back to the full committee? Or this is the empowerment of this? This is, under rule XVI, created? 

Mr. GONZALEZ. Ms. Lofgren. 

Ms. LOFGREN. My understanding is we have been empowered as 

a task force. And I think they use the task force nomenclature in 

the Dornan-Sanchez race as well to make this decision. I mean, we 

can—if you convince us, we can vote no on the motion I have just 

offered, but we are empowered to proceed or not to proceed, and if 

we proceed, empowered to decide how to proceed under the rule 

and following the precedence of the House. 

Mr. MCCARTHY. Okay. Just for clarification. And then I know we 

had talked at one time, maybe we would just have legal counsel, 

just as we move forward I guess. 

I guess, I would then get to—just one other personal inquiry if 

I can. When you say this motion, I move the task force to initiate 

an investigation, for a definition of investigation, you refer to a little later that, if this were to pass, then we would decide what investigation meant; is that correct? 

Ms. LOFGREN. Well, I am going to—if this motion is approved, I 

am going to make a further motion about how to proceed that 

would involve a dispassionate entity assisting us. 

Mr. MCCARTHY. Okay. Now I will be on my 5 minutes, I guess, 

to debate the first question. 


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I come to this committee from the standpoint that I think we do 

have the institution and the respect of the institution to keep the 

responsibility there, that this is not to be political on any basis. So 

I never want to derive from a political predetermined position. And 

the question that we had was, do we move forward? So, from my 

perspective, I had to sit back from our last meeting where we have 

had both entities that had representation lay out their points. And 

when I sit and look first that you have a race, that you have 18,000 

undercounted votes. I look within that ballot; there is an attorney 

general race in there that had more. Then I asked the question, did 

anybody else use these machines? There were 11 other congressional districts that used these exact same machines. One being 

one district down with a new member, Mahoney, that was a close 

race; not as close as this, where the opponent’s name wasn’t even 

on the ballot. So I raise the question, what did the State do to certify these? Because when we go in that day and raise our hand and 

everybody gets sworn in, just as Congressman Buchanan was, was 

there anything done to analyze this because the undercount raises 

a question that people should look at? Doing the parallel testing, 

which the State did, where they take the machines and go and test, 

I raise the question, which machines did you use? I asked the question to Ms. Jennings’ attorney, were they actually able to select 

some of the machines? I asked the same question to Mr. 

Buchanan’s counsel, and they didn’t select any. They just allowed 

the process to pick. Then I raised the question, well, did you select 

the machines that had the undercount in the highest precincts and 

others? And the answer was, yes. So that was one test that—okay, 

so we went further. But then there was the question that was 

raised, but you need to know the source code. And that is part of 

the argument, through the source code, could somebody break in 

here? And then I look to, what did Florida do? Florida went out 

and got eight experts to analyze the source code, came back with 

a unanimous decision within there, and in the parallel, testing 

nothing showed a problem and said there was not a problem in 

here. 

Now we did not have before us in the last meeting any of those 

eight individuals that could be here, that did the audit. And you 

had raised the point just a little earlier that the State is doing this, 

and the State is part of the lawsuit. So the argument on the other 

side was, we didn’t have an opportunity to pick the individuals. So 

we had an interesting situation, though. In one of our hearings 

that Ms. Lofgren had on H.R. 811, one of those experts was here, 

and I raised the opportunity because he was here. His name was 

David Wagner, and I was able to ask him if he had the source code, 

and he said, yes. And what was interesting, there was another individual here Mr. Zimmerman that represented an entity that is 

part of a lawsuit now within this. I think the lawsuit is Fedder v. 

Gallagher. And what was interesting in this conversation we took, 

and I have the transcripts here, I asked Mr. Zimmerman what did 

he think of Mr. Wagner? Just thinking, okay here is an independent, did the State go out and pick people? And Mr. Zimmerman who is in a lawsuit against him there said, I think he is a 

very fantastic scientist, who I go to for information from time to 

time. So then it raises the question that if these—these were indeVerDate Aug 31 2005 15:45 Jul 09, 2007 Jkt 036369 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 E:\HR\OC\36369.XXX 36369

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pendents, and even if somebody had a choice on the other side, 

they probably would have selected this individual. 

I mean, when I looked at the different races, and I looked at one 

in Connecticut that only had 80 votes, I still haven’t found from 

what the State has done, parallel testing, releasing the source code 

in that manner and doing the audit, that I haven’t found any evidence that there had been a problem. You can say from the aspect 

of having the undervote and also in the attorney general race that 

there was a ballot design problem. But I am trying to take it from 

the perspective, I have to make a decision based upon the evidence. 

From the same aspect that it has been a while, those constituents 

have a right to be represented. They have a Congressman sworn 

in. The State has gone through the process. If something has shot 

up through the parallel testing, rightfully so, go in. If in this independent audit, if one of the eight had said, I disagreed, I would 

have said, well, let’s probe there a little further. If Mr. Zimmerman 

had said, that Mr. Wagner, he is always on this other side, I would 

never use that man—actually hires the individual and believes he 

is a great scientist. Then we had another Ph.D. there that had 

nothing to do—didn’t do the study or anything else. And I asked 

him the question, and then I probed further, have you read the 

study? And he said, yes, and he said it is probably one of the most 

thorough ones I have ever read. So analyzing what is before me, 

do we go through an investigation which has its own ramifications 

and we—having the respect of this House and maintaining it, that 

everyone gets here and gets certified going in, the State doing parallel testing doing an audit with outside entities, with scientists 

looking at the source code and no evidence before us saying there 

is a problem with any of those investigations, I would have to 

argue that I think there has been an investigation. There has been 

tax money used. They have looked at the machines. They actually 

took the machines that had the highest undervote count in the 

worst precincts that the opponent got to select and not one evidence came forward. So from that perspective, are you doing a disservice to the constituents? Are you doing a disservice to Congressman Buchanan, trying to put—from that perspective? I think this 

House—and I appreciate being able to have that last meeting because I thought you handled that the correct way, bringing both 

entities in and just having them lay out, one, their arguments, got 

to have the question before, should we move forward? If you move 

forward, what would you do? And I am just saying from gathering 

that information, hearing what is before us, we have had an investigation. I think it is time to move on and let the constituents continue to be represented. 

Mr. GONZALEZ. Thank you Mr. McCarthy. 

Mr. MCCARTHY. So I officially ask for a no vote. 

Ms. LOFGREN. I would just say a couple of things. In the briefing, 

we were able to review many affidavits from voters who reported 

that their votes were not tallied. Now, in looking at the review that 

was made, what has been clear is that it was not a complete review. Mr. Wagner from the University of California I think has acknowledged as a very able scientist—I mean, no one has suggested 

that he is not, and I do not. The issue isn’t about him. It is about 

the scope of his review. And as my colleague from California 


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knows, the scientists, the computer scientists from Stanford University across the Bay from Cal have suggested that the review 

needs to be broader than was engaged in. And I believe that that 

is, in fact, the case. I also believe that this review, which has really 

been stymied by the courts in Florida, can be accomplished very 

promptly. I think it should be. This has gone on too long. And I 

think we need to move forward. I think we need to adopt this motion. 

I realize that the gentleman disagrees on this, and I do respect 

that. But I am hopeful that, if this motion passes, that you will 

agree on how to proceed because we need to do this transparently 

and fairly, and that is my commitment. And I yield back. 

Mr. GONZALEZ. Thank you very much, Ms. Lofgren. 

My own impression of the briefing that we had, of course, was 

the excellent job that the lawyers did, but there was—well, the materials we received from the contestant contained an affidavit by I 

think two Ph.D.s, one was from Rice and I forgot the other—that 

in essence, did disagree with the manner and method or protocols 

that were utilized in the testing. So I don’t think that you have 

unanimity as to the validity of the manner or method of testing. 

And I still go back to something I think it is fundamental. The contestant does have the burden of proof. The contestee has a motion 

to dismiss pending before this task force, this committee before 

Congress. Somewhere down the road, we have to make a recommendation to the whole committee. The same parties that resisted allowing the plaintiff in the Florida case from following 

through in conducting the tests according to what they thought 

were the appropriate standards in order for them to meet their 

legal standard still believed that it was a legitimate exercise and 

undertook it themselves. And I think that is where we are today. 

The problem is, again, those individuals that did the testing and 

the manner in which was basically dictated, approved and directed 

by one side. And I don’t believe that that is probably the best way 

to reach some sort of conclusion, that if you are from the outside 

looking in, you would say that is a fair process. I think that is the 

fundamental question for me. And how do we accomplish that? And 

of course, that is not something that we get into right now. But 

definitely I think we all have something in mind based on what 

was shared with us at the briefing which was about two and a half 

hours and was truly enlightening. My sense is that we move forward, and we can discuss in what manner and going into the specifics that Ms. Lofgren has already touched on to some extent. At 

this time, I would yield to either of my colleagues if they have anything that they wish to add at this point before we would take a 

vote. 

Mr. MCCARTHY. The only thing that I would add—I know you 

raised the point that one side—that a study was done by one side, 

but let’s look at elections. We elect secretaries of States to be the 

independent when it comes to the election. When you refer to the 

other side, that is not Congressman Buchanan doing it. That is 

who the people chose to be the independent person. Now if you 

have a disagreement from the process, you have to challenge the 

secretary of State, but I believe the secretaries of States are independents. As you go across this country, you will find that because 


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they are the ones that certify all elections across the board. So I 

understand your argument, but I don’t believe that that is just in 

the process that that is who the people select to be their independent counsel. They don’t go to, okay, we certify opponent A as 

the winner, so they got to go select who these independent Ph.D.s 

were who went to go do this research. To me, they are independent. 

To me, they were the people entrusted by the State of Florida to 

look at it in a nonpartisan manner and come to that conclusion. So 

I mean, I just disagree with that argument. Now, had a parallel 

test shown something wrong, let’s go move forward, had an independent audit, or had Florida not done either of those; yes, I think 

the undervote determines that we should look at it. But if they 

have tested it and have gone through it, what more could you do 

then with it? 

Mr. GONZALEZ. And I understand, and I don’t mean to cast aspersions on any elected official or election official in Florida. I think 

my fundamental issue comes down to that you have someone who 

has a vested interest in the outcome of the litigation, and that is 

problematic to me. And I know that they will proceed in the fashion that they believe is fair, but nevertheless it is going to lack 

something, but the opposing party who also has a vested interest, 

there is a way of actually addressing those competing interests. 

And to the extent that, at least appearance-wise, it would not appear fair to allow and to vest all the authority into only one of the 

parties to litigation, they do have a protectable interest. And it may 

be reputation. It may be policy. It may be politics, all of that. And 

I think if we can somehow remove that part from this equation of 

trying to gain the truth as to exactly what happened that day, did 

the machines malfunction and so on, by allowing a process that removes that specter of an interested party of someone with a vested 

interest again. And I think that is my biggest concern, and it has 

been from the beginning. And I think the individuals have addressed it well, and I know that Mr. McCarthy and I, as well as 

Ms. Lofgren, have had informal discussions early on. I know that 

staff has looked into it way before we have started getting formally 

engaged in the process. Ms. Lofgren, do you have anything further? 

Ms. LOFGREN. No. I am advised that actually after our colleague 

Ms. Harris left the position as secretary of State, it actually became an appointed position. But I don’t think that changes the argument. I just am—I think we need to put this to rest, and I don’t 

want to unduly delay this debate, but I do think that, you know, 

we need to find out whether we can find out what happened, and 

I would yield back before the Chairman—— 

Mr. GONZALEZ. Ms. Lofgren, do you have a motion? 

Ms. LOFGREN. The motion is to move that the task force initiate 

an investigation of Florida’s 13th Congressional District. 

Mr. GONZALEZ. Call for a vote. All in favor will answer aye. 

Ms. LOFGREN. Aye. 

Mr. GONZALEZ. Aye. And all opposed, nay. 

Mr. MCCARTHY. Nay. 

Mr. GONZALEZ. The motion carries. And as I pointed out and I 

think Ms. Lofgren also touched on and we have had these discussions when we had the briefing and such, if we moved forward, 

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plish? And I think we have touched on the fundamental question 

of which is the most expedient, fair, complete manner of proceeding. There has been discussion because we lack the expertise, 

obviously, and the staff to bring in an entity, an agency, an individual, an expert to assist us in this particular endeavor. And then 

allowing that individual some latitude, but in real questions, that 

may arise regarding the protocols the individuals and so on, and 

working in conjunction with the attorneys, by the way, if there is 

a question that still it would be up to the chair working in consultation with the members of the task force to resolve. 

But I think the first issue is, where are we going to go at this 

point in time? I would like again to direct our attention to seeking 

the assistance of someone, again, an agency, department, an individual, and we have already had this discussion somewhat during 

the briefing. And I do want to welcome our colleague, Mr. Lungren, 

and we will be following the rules of the committee. You are a 

member of the full committee, so you will be able to participate. Of 

course, you won’t be able to vote. 

Ms. LOFGREN. Mr. Chairman, I would like to offer a motion. 

[The information follows:] 

TASK FORCE MOTION #2 (AS AMENDED)—HOW TO PROCEED

MAY 2, 2007—ADOPTED BY VOICE VOTE

(Offered by Zoe Lofgren) 

I move that the chairman be authorized and directed to secure the assistance of 

the Government Accountability Office, which shall be requested to design and propose testing protocols to determine the reliability of the equipment used in the FL– 

13 election, taking into account recommendations by the contestant and contestee. 

The Task Force shall approve any testing protocols prior to execution by the GAO. 

The GAO may procure such expertise and assistance from governmental or non-governmental experts and entities as it deems necessary, and shall report its findings 

to the task force. 

Mr. GONZALEZ. You may proceed. 

Ms. LOFGREN. I move that the Chairman be authorized and directed to secure the assistance of the Government Accountability 

Office. The GAO shall be requested to design and propose testing 

protocols to determine the reliability of the equipment used in the 

Florida 13 election, taking into account recommendations by the 

contestant and the contestee. The Chairman, after consultation 

with the task force members, shall approve any testing protocols 

prior to an execution by the GAO and that the GAO may procure 

such expertise and assistance from governmental or nongovernmental experts and entities as it deems necessary, and shall report 

its findings to the task force. If I may speak briefly in support of 

this motion, the Government Accountability Office, as we know, is 

independent. It is a part of the legislative branch, but it is not a 

partisan organization. And in fact, they fight quite jealously to be 

independent of the House. They are objective, and they have expertise that we do not have. So I do think that their involvement will 

make sure that the analysis is done in a completely nonpartisan 

way. 

As for the contestants, I would note that Ms. Jennings’ counsel 

suggested basically competing experts and that each party be 

granted the right to have discovery, and I don’t think that is the 

right way to proceed, frankly. We will just end up with competing 


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experts, and we will still have the lack of expertise that we need 

to proceed. So I think to allow the contestant and the contestee to 

make their pitches to—if you will, to the GAO, is appropriate. They 

obviously both have a great interest in the outcome. But the GAO 

should decide how to proceed in terms of the testing protocols. I 

would note that the Chairman needs to be empowered to approve 

the testing protocols but that he also needs to be required to check 

in with the task force. And it is my expectation that the Chairman, 

if there were minor issues, obviously he is going to consult with us 

and proceed. 

If there is actually a substantive issue, I would expect that he 

would come back, and we would have a formal vote. And I know 

the way the Chairman has proceeded so far is fair and dignified, 

and that has been recognized by all the members of the committee. 

And I know that he would proceed in that way. 

Deputizing the GAO to use outside experts is another important 

element. I would note that there have been some discussions about 

what role NIST should play. And it is interesting. I recently—I 

have never met with the Director of NIST, and I didn’t do it for 

this purpose. As Mr. McCarthy knows, we have been trying, wrestling with the issue of the voting machine bill. And there was a 

suggestion that they play a role in software, which they didn’t want 

to do. And so, Mr. Holden, I met with him to see, you know where 

did they see themselves in the voting machine bill? And it became 

very clear as we—they are not—they are not a regulatory body. 

They are going to run away from anything that involves just setting standards. That is what they do. And they are right because 

everybody trusts them because that is all they do. And I would not 

want to disrupt that role for them. 

On the other hand, if they are asked by the GAO to do something 

that is within their purview, they can do that. And that is why, you 

know, I—there was some informal discussion that NIST should 

play the lead role. They can’t do that. They don’t want to do that. 

But this allows them to be—to play their appropriate role, and I 

would expect that the GAO would, in fact, involve them in an appropriate role. 

Finally, I know that the minority thinks that we should not proceed. But if we are going to proceed, and we voted to do so, I think 

this addresses the issues that have been discussed and guarantees 

that we will proceed in a way that is dispassionate, that is informed by expertise, and that is not a partisan endeavor. And that 

is why this motion is crafted as the way it is. And I am hopeful 

that we can all support it. And with that, I would yield back to the 

Chairman. 

Mr. GONZALEZ. Mr. McCarthy. 

Mr. MCCARTHY. I agree with you from the standpoint, I didn’t 

like the concept that both parties went and did their own investigation because, well, you know, Mr. Chairman, being a judge, you can 

get anybody, and we are going to end up going nowhere. On reading this, I have concerns. But I think there is a place that we can 

get to that—and I would hope, too, that we move in an unanimous 

basis going forward. Yes, I disagreed with doing the study because 

I haven’t seen the evidence. Having said that, we did bring up 

NIST. I also think the National Security Agency could do part of 


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this, too, and maybe do some of the research, NSA. And I will tell 

you that somebody at NIST gave that idea because they are in 

America’s cryptological organization to coordinate, direct, perform 

highly specialized activity. There are some very good experts. I 

mean, they are protected from that standpoint. 

I would say, based upon our argument prior, wouldn’t our first 

action be—if we have a disagreement about the audit, I mean, if 

I took our last debate, the majority believes that the audit, the 

scope was not correct. I believe from that perspective that it was. 

Now, none of us have the expertise of the NSA or them or maybe 

even the GAO. I would believe our first step, why would we have 

the GAO analyze that audit because that would come down to what 

the whole argument being, one entity from Stanford said, you 

didn’t have it all the way. You had eight experts, Ph.D.s, that said 

this was all fine. Why don’t we first take the GAO? If they need 

expertise, that they can communicate to the NSA and to NIST, to 

analyze the audit first. Because this is what I am thinking, I am 

thinking down the road. Whatever happens I would hope, at the 

end of the day, it would be unanimous no matter what the end of 

the discussion would be, because I think that is for the institution. 

On a national—if I look back on this in history, you wouldn’t want 

to always—I believe the Chairman has a right to do things, but you 

want to make sure you give them full authorization. This committee is small. I think we need to move forward in those steps. 

And I would feel very comfortable with you coming to me on the 

Floor and saying, oh, we are doing this. If there was ever some 

type of disagreement, we come back with a vote. But if we took the 

GAO, just to come back to that, on a timeline basis because if you 

are going to come up with standards and go through everything, 

we could be here another 6 months or a year. But if they analyze 

that, you also—say they come back and they say these standards, 

they take your position, these standards are wrong, you would have 

to maybe come up with the testing protocols if we had to move forward. But if they came back and said, this is all correct, our answer may be there as well. So I don’t know if I would offer a friendly amendment to scope this down, giving the GAO the power, the 

Chairman to go to the GAO, the GAO has the right to go to NSA, 

to NIST that they see experts to analyze the Florida audit from 

their procedures and what went forward. 

Would that be acceptable? 

Ms. LOFGREN. Well, if I may—— 

Mr. GONZALEZ. Ms. Lofgren. 

Ms. LOFGREN. I think that the final paragraph of the motion authorizing the GAO to procure such expertise and assistance from 

governmental or nongovernmental experts and entities as it deems 

necessary would include the NSA if they think that is necessary. 

Mr. MCCARTHY. That is fine. 

Ms. LOFGREN. So we don’t need an amendment. I never thought 

of that, honestly. And I must confess I am a little skeptical that 

the NSA would want to do that. But if that is—if the GAO thinks 

that is a good thing to do, fine, I don’t have an objection to that. 

As to the review of what has already been done, I think that 

clearly is within the purview of this, and I expect that they will do 

that. But I also expect that they would do protocols for the addiVerDate Aug 31 2005 15:45 Jul 09, 2007 Jkt 036369 PO 00000 Frm 00017 Fmt 6633 Sfmt 6602 E:\HR\OC\36369.XXX 36369

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tional testing that has been asked by the contestant. If we were 

satisfied with what has been done, we wouldn’t be proceeding. And 

so, you know, if they come back and say, we, you know, we have 

looked at it, and this is all we need to do; that is the report we 

are going to get. I know that, because they are independent, they 

are going to tell us what—they are going to call it as they see it. 

And that is the beauty of having the GAO do this. So I hope that 

that satisfies the gentleman. 

Mr. GONZALEZ. Mr. McCarthy, if you want to respond. 

Mr. MCCARTHY. Yes, the only thing I would say, moving forward, 

I can’t agree to what this is because the scope is narrow. I mean, 

the argument—I am trying to take what I heard earlier, why you 

came to the conclusion from—different from the conclusion I had 

where I didn’t see any evidence. The Chairman’s argument was, he 

raised the doubt because the Secretary of State was the one being 

sued, and they selected the individuals. And then you raised the 

debate inside the meeting that we had prior that—from a Stanford 

person. So I thought we were kind of at this point and this point 

being said, GAO being viewed as an independent entity being able 

to look for experts on the outside, who have greater expertise than 

we do on how they analyze, these Ph.D.s and others going through, 

looking at what the State had done. Shouldn’t we first—if we had 

doubt of whether the State was right or not in that procedure or 

whether those were independent, which the question you raised, 

wouldn’t that answer that question? 

Mr. GONZALEZ. And I will respond. You still have the problem 

that I think I pointed out from the beginning. And that is, you 

have the contestant who has the burden of proof who is requesting 

specific testing in order to meet that burden. And that testing incorporates protocol or a manner that is different than what has already being conducted. I don’t disagree with you that I think GAO 

is going to be looking at the large body of evidence that is already 

in existence. And there is no doubt in my mind that the contestee’s 

attorney is going to make a very strong, strong argument to pretty 

much restrict GAO’s role to reviewing what is already in existence, 

passing some sort of judgment and then keeping to a bare minimum what might be some additional testing. That is what—I 

mean—that is what I think are the arguments that are going to 

be taking place at GAO, and I think GAO is probably going to put 

something together, and they will come back to us because, in the 

final analysis, we really have to look at that protocol and take the 

arguments that have been advanced, and then they move forward 

with whatever we decide. So I think what you are suggesting still 

leaves unresolved, and that is the central question, is the best 

thing is you have an impartial neutral party that has the resources 

and the expertise? And they don’t have the authority to go out 

there and bring those individuals into this process and go beyond 

that which is already in existence, which one party, the party that 

has the burden has found insufficient for the purpose of their evidence gathering because, eventually, they are going to have to still 

make their case to us on the motion to dismiss that is pending as 

filed by the contestee. But I do want to recognize Mr. Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. I appreciate 

your courtesy, and I sort of feel like an alternate juror here. It is 


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kind of difficult when you only have one on our side, and if he is 

unable to participate for me to come in without knowing things. So 

that is why I am trying to attend these. I am sorry I was late. I 

was over in Judiciary where we have to get back to I know. 

Ms. LOFGREN. Did they take up my bill yet? 

Mr. LUNGREN. No. No. We are still on the COPS bill. I think I 

was the only dissenter on that. And I know we are not supposed 

to refer to the transcript from the business meeting that we had, 

but at least I think I can say that I was the one who brought up 

NIST because it seemed to be a good idea at the time. Since that 

time, we have discussed with NIST as well, my staff has, in some 

extended conversation with them, and something we learned from 

that goes to I think the issue that is before us. When we talked 

with NIST, they talked about, they were to do a study—if they 

were to do a study, it would take something like 15 man years to 

do something, what we were talking about doing with the source 

code analysis and so forth. That suggests to me it is going to take 

a long period of time if the source code is ever allowed out, as I 

understand the company has fought against that, except to allow 

it to go to the bipartisan or nonpartisan or whatever you want to 

call that panel down in Florida. 

So if that is the inevitability that it is going to take a long period 

of time, and the gentlelady from California suggests we would like 

to get this thing wrapped up in a reasonable period of time, that 

might suggest that that is impossible if that is what the ultimate 

requirement of technical analysis is. That is why I think the gentleman from California’s comment about at least making it clear to 

GAO that they should look at the Florida report to see if it does 

give them a body of information upon which they can render a 

judgment makes sense. That might allow us to get some answers 

within the time frame the gentlelady suggests or somewhat beyond 

that as opposed to saying these answers can only be ascertained 

after these 15 man years, or whatever that means, down the road 

where we are going to be sitting here 18 months from now on the 

eve of a new election trying to decide what happened here. So I 

guess from my observation as the nonbinding party to this hearing, 

we should make it at least clear to GAO that what the gentleman 

from California said is within their purview and may even be a priority for them because it may give us some guidance earlier than 

anything else we can see because I think all of us on the full committee and in the full Congress want this thing resolved within a 

reasonable time frame. And after our conversations with NIST, I 

was concerned that, oh, my God, not only don’t they want to do it, 

but they are saying, technically it would take—in my terminology—forever to do. We would never get to the definitive decision 

we have to make. So I would just offer that. The gentleman from 

California has raised a prospect to what GAO might be able to do. 

It may very well be the way for us to at least get guidance as to 

whether we could make a decision within a reasonable period of 

time. 

Mr. GONZALEZ. Ms. Lofgren. 

Ms. LOFGREN. I would just say this, that the contestant is not 

going to be empowered to do discovery under this motion. They are 

going to be empowered to ask an impartial entity to consider their 


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request to do a particular form of testing that is recommended by 

scientists at Stanford University; that they believe, according to the 

Stanford scientists, it would take about 45 days if all things went 

smoothly. I don’t know. I am not a computer scientist. But I think 

that—I hope that this can be done in 45 days. If the gentleman is 

right, and it takes, you know, 2 years, well, you know, we will be 

in a very different—Mr. Buchanan will never face a vote of this 

committee and nor will Ms. Jennings. So we can’t know that now 

because none of us can predict the future. But I would just say, it 

is my—I am not going to change the motion. But it is my anticipation, my belief that we can put it in a committee report if there 

is a committee report. The GAO, as its first order of business, is, 

they are going to take a look at what has already been done. And 

of course they are going to do that. But we also expect that they 

will do—allow the contestant to have some kind of dynamic testing 

that has not yet occurred, and then get back to us and then give 

us a report. And I expect whatever the report is, it will be unanimous, I mean, when we accept it. I don’t think—this is not going 

to be a politicized endeavor at all. And I don’t want that, and I 

don’t think you want it, and I don’t think the Congress needs that. 

And I would thank the gentleman for yielding. 

Mr. GONZALEZ. Mr. Lungren. 

Mr. LUNGREN. I may be the only one here who was here in the 

1980s, and I just don’t want us to revisit that sorry situation because it did poison this House and changed the dynamic in the 

House of Representatives for the rest of the time I was here. And 

I don’t think we want to repeat that or get even close to that. So 

I thank the gentlelady. 

Mr. GONZALEZ. Mr. McCarthy. 

Mr. MCCARTHY. Yes, Mr. Chairman. Having heard that and looking back, I guess if we are going to look to history, I would only 

raise this issue, and I would ask that you take it as a friendly 

amendment or I will offer it as a motion after this, that the testing 

protocols are subject to the task force approval, because the way I 

read it here, we empower the Chairman and authorize them, and 

in the end, you are empowered to do the design and propose the 

testing protocols. So we are setting ourselves up for, in the next 

meeting, ‘‘well, I didn’t get a look at it.’’ I am just thinking trying 

to take arguments away. I just think that, from the design and proposed testing protocols, that that is a committee, and knowing that 

I am one—one side, too; on the other, you still have the advantage 

from that perspective, but I think, in an open process, it would be 

looking at history that it would show more—— 

Ms. LOFGREN. Would the gentleman yield on that point? 

Mr. MCCARTHY. Sure. 

Ms. LOFGREN. This is the reason why I crafted it in this way. 

And if there are tiny issues, like what day we are going to report 

or something, that I don’t want us to have to meet to make a decision on a comma. On the other hand, if this is something substantive, I expect the Chairman to reach out to us. And I would expect also that the staff would reach out to staff so that we are not 

called on the Floor to make a decision that we don’t really have the 

background to make; and that if there is any disagreement, that 

we would then have a formal meeting. So that is what I intend by 


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this to happen. And I think that if the Chairman would confirm 

that that is how he intends to proceed, I mean, there would be a 

big stink if it were other than how I have described it, and I trust 

the Chairman to operate in that way that is fair. 

Mr. GONZALEZ. Let me go ahead and address your concern. When 

it says consultation, I take it quite seriously and for a lot of reasons. One, I don’t have all the answers, and it is wonderful when 

it is collective. Much of what we have in this particular motion, to 

be real honest with you, was developed as a result of questioning 

by members of the minority party at the briefing which—the point 

is well taken, I can assure you, anything of any import. When I say 

‘‘consultation,’’ it may require a meeting, but if it is something 

minor, I still will consult. 

And, of course, we have rules, and I am always concerned about 

running afoul of the rules. To what extent can I informally run 

something by you that is not totally significant, but it a question 

and someone is asking us to resolve it, I would like to have some 

latitude on that. And you all would trust me that if it is of the nature to the degree that I think would require a meeting, I assure 

you that we can conduct the meetings. 

They are not true hearings; we don’t have witnesses, subpoenas, 

testimony that can be called in very short order, so—I can assure 

you of that. I am not the author of the amendment, but I do believe 

that it provides to allay any fears that you might have. 

There was one other point that I want to make abundantly clear, 

and that is existent evidence and testing and such. I don’t want 

any of today’s conversation that we have had here to be interpreted 

as this task force identifying any one piece of evidence that may 

be in existence as being somewhat superior or that everyone would 

defer to. 

I understand that there is a body of evidence out there already 

that GAO will definitely incorporate. But I don’t want anyone to 

look at the transcript of today’s meeting and then deduce somehow 

that, well, if we just look at what has already been done, we can 

move forward and it is all ended. 

To a certain extent I understand that that evidence is there, it 

is going to be incorporated, it is part of the analysis. But I anticipate that the concerns expressed by the contestant as to further 

testing, if GAO and whoever they bring into the picture in the way 

of additional expertise, determines that it is appropriate, relevant, 

material, legitimate, then that we would move forward on that 

basis. 

Mr. McCarthy. 

Mr. MCCARTHY. Well, I have got to tell you, I am getting frustrated now because I am coming in from a standpoint that, in the 

end, I want a unanimous decision. That means we work on a commonsense basis. With no undue respect, Mr. Chairman, I don’t ever 

question you not coming to me. You have treated me that way all 

the way from the very beginning. 

But this place runs on rules, and when you look back at something, the rule says you are empowered to do this in the end result. 

And then I hear from Ms. Lofgren, who said, well, I see the GAO 

doing what Stanford said. To me, that seems like something predetermined. 


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I did not want to come to this committee to have something predetermined. So—from that standpoint, I thought I was trying to 

offer something that could get us to a point that had a unanimous 

consent, that we are looking at this on that basis; and I just have 

to be very honest with you that I don’t find this to be that. And 

strictly from the standpoint that we are a small committee, it is 2 

to 1, there should never be a fear of meeting, but we should never 

start a basis with the rules of a disadvantage from that one standpoint. And I just think, from that perspective, I feel very frustrated. 

Ms. LOFGREN. Mr. McCarthy, the chairman has just handed me 

a piece of paper suggesting that we say the task force shall approve. I would accept that as a friendly amendment, but with this 

caveat. 

I don’t really know how this is going to work, but if it ends up 

having to meet to approve commas, or things that are minor, ends 

up delaying the process, then I am going to suggest that we come 

back into session and go back to the original motion. Because we 

want to get this done and we don’t want to have a meeting every 

day for something that doesn’t matter; whereas we do want to have 

a meeting and approve unanimously anything that is substantive. 

So with that understanding, I would accept the chairman’s suggestion on the change in the motion that would read, ‘‘The task 

force shall approve any testing protocols prior to execution by the 

GAO,’’ which I think does address the gentleman’s issue. 

Mr. GONZALEZ. Without objection, the original motion is amended. 

Mr. McCarthy, at this point I think we have had a really goodfaith discussion all along the way. I am not going to do anything 

to jeopardize that. I don’t think your request is unreasonable. 

Obviously, Congresswoman Lofgren is agreeable to that amendment, so the protocol, the final protocol as set out, will require, obviously, a meeting of the task force. Mr. Lungren will be welcome 

to attend that. 

So, with that, do we have any other remarks or comments? We 

are running 5 minutes late. Otherwise, the motion is on the table. 

All in favor, answer aye. 

All opposed. 

Any further business? 

If not, then we stand adjourned. Thank you very much. 

[Whereupon, at 11:50 a.m., the committee was adjourned.] 


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