HRES463JUN15

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 .

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.

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.

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 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.

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

Sponsor: Rep. Robert A Brady (D-PA-1^st)

Vote: Passed House by voice vote June 12, 2007

Cost to the taxpayers: No discernible cost

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