[House Report 113-22]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 113-22
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DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE TWENTY-EIGHTH CONGRESSIONAL DISTRICT OF TEXAS
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March 19, 2013.--Referred to the House Calendar and ordered to be
printed
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Mrs. Candice Miller of Michigan, from the Committee on House
Administration, submitted the following
R E P O R T
[To accompany H. Res. 127]
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-Eighth Congressional District of Texas, report the same
to the House with the recommendation that the resolution be
agreed to.
DISMISSING THE ELECTION CONTEST IN THE TWENTY-EIGHTH CONGRESSIONAL
DISTRICT OF TEXAS
The Committee on House Administration, having had under
consideration an original resolution dismissing the election
contest against Henry Cuellar, report the same to the House
with the recommendation that the resolution be agreed to.
COMMITTEE ACTION
On March 14, 2013, 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 House Rule XIII, clause 3(c)(1), the
Committee states that the findings and recommendations of the
Committee, based on oversight activities under House Rule X,
clause 2(b)(1), are incorporated into the general discussion
section of this report.
STATEMENT OF 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 and a statement under
House Rule XIII, clause 3(c)(2), and section 308(a)(1) of the
Congressional Budget Act of 1974 is not required.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
In compliance with House Rule XIII, clause 3(c)(3), the
Committee states, with respect to H. Res. 127, that the
Director of the Congressional Budget Office did not submit a
cost estimate and comparison under section 402 of the
Congressional Budget Act of 1974.
STATEMENT OF FACTS
On December 11, 2012, William R. Hayward (``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 Republican
Party for the office of Representative to the United States
Congress representing the Twenty-Eighth Congressional District
of the State of Texas in the November 6, 2012, general
election. The other principal candidate for the Twenty-Eighth
Congressional District was incumbent Democrat Henry Cuellar
(``Contestee''). On December 6, 2012, the Texas Secretary of
State's office certified the results as follows: Contestee
received 112,456 votes and Contestant received 49,309 votes.
The Texas Secretary of State, John Steen, issued the
Certificate of Election certifying Contestee as the winner of
the Twenty-Eighth Congressional District on December 7, 2012.
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\1\2 U.S.C. Sec. 381-96.
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BASIS OF CONTEST
In his Notice of Contest, Contestant alleges that the
official election results for the Twenty-Eighth Congressional
District were tainted by fraud and vote tampering and that,
absent such fraud and tampering, the election would have been
in favor of Contestant. In addition, Contestant claims that if
a new election were ordered Contestant could win because
registered voters who were intimidated from not voting would
come out to the polls. Contestant is asking that the House
order an inspection of the ballots, a review to determine
whether election law violations occurred, and a new election
pursuant to the authority in Article I Sec. 5 of the United
States Constitution.
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 Republican nominee and
his name appeared as a candidate for the Twenty-Eighth
Congressional District on the official ballot for the November
6, 2012 election. Contestant's claim of a right to the office
in the Notice of Contest is ambiguous.
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\2\2 U.S.C. Sec. 382(a).
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Contestant claims that ``had the ballots not been tampered
with, that their votes cast would count, and the voters were
given a fair choice on who to vote for without fear of
reprisals from the Contestees'' then the election would have
been in favor of Contestant. Elsewhere, Contestant asks
specifically for a new election rather than to be declared the
winner of the election held on November 6, 2012, and suggests
that additional voters would need to come to the polls in order
for him to win.
Contestee did not challenge Contestant's standing in the
Motion to Dismiss. The Committee assumes, without deciding,
that Contestant has standing to pursue this contest. Because of
the Committee's conclusion on the merits of the contest, this
assumption does not prejudice Contestee.
TIMING/NOTICE
The Notice of Contest has been served upon Contestee and
was filed with the Clerk of the House of Representatives on
December 11, 2012, within the prescribed time periods of the
FCEA.
RESPONSE BY CONTESTEE
On January 15, 2013, Contestee filed a Motion to Dismiss
Contest of Election in response to Contestant's Notice of
Contest challenging the results of the 2012 General Election
for the Twenty-Eighth Congressional District of the State of
Texas. Contestee maintains that the contest against him should
be dismissed because Contestant failed to set forth with
particularity, as required by 2 U.S.C. 382(b), grounds
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.\3\
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\3\U.S. Constitution Article I, Section V.
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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.\4\ 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.\5\ Unless a contestant credibly claims in his
Notice of Contest a right to the office, the House of
Representatives will dismiss the Contest.\6\
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\4\2 U.S.C. Sec. 382.
\5\See, e.g. Pierce v. Pursell, H. Rep. 95-245 (1977).
\6\Anderson v. Rose, H. Rep. 104-852 (1996).
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ANALYSIS
Contestant claims Contestee and Contestee's representatives
committed a number of violations of both United States and
Texas law including: unlawfully influencing voters, illegal
voting by non-citizens, tampering with Direct Recording
Electronic voting machines, and unlawful electioneering.
Contestant expressed ``shock'' when the vote totals were
released and he found himself behind in the count because he
had ``put a campaign business size card on every car in
Laredo'', there were many early voters and Republicans tend to
vote early, and many Democratic voters had informed the
Contestant that they were voting for him. Contestant also
states that a number of the counties in question have a long
history of vote tampering, but provides no evidence of that
long history. In addition, Contestant claims that Democratic
voters were bused to the polls, had utilities bills paid, were
given free tacos, and were provided money in return for their
vote. Contestant questions the security of ballots from early
voting and says that they were not kept in secure conditions
when not in use. Finally, Contestant claims that the voting
machines were tampered with so that those who voted for the
Contestant had their votes changed to Contestee. In support of
his allegations, Contestant has offered the hearsay of unnamed
sources and his own testimony. He does not provide any evidence
to support his claims other than his own words. Contestant has
offered information such as early vote totals and final vote
totals that seem to prove Contestee garnered a majority of the
votes in the November 6, 2012 election.
The Contestant must support his claims with specific
credible allegations of irregularity or fraud that, if proven
true, would entitle the Contestant to the office. Contestant
has offered no support for his claims.
The Committee finds that Contestant has failed to make a
credible and specific claim that he is entitled to the office.
CONCLUSION
For the reasons discussed above, the Committee therefore
concludes that this contest should be dismissed.