[House Report 117-28]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 117-28
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DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE FOURTEENTH CONGRESSIONAL DISTRICT OF ILLINOIS
_______
May 11, 2021.--Referred to the House Calendar and ordered to be printed
_______
Ms. Lofgren, from the Committee on House Administration, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H. Res. 379]
The Committee on House Administration, having had under
consideration an original resolution dismissing the election
contest relating to the office of Representative from the
Fourteenth Congressional District of Illinois, report the same
to the House with the recommendation that the resolution be
agreed to.
DISMISSING THE ELECTION CONTEST IN THE FOURTEENTH CONGRESSIONAL
DISTRICT OF ILLINOIS
The Committee on House Administration, having had under
consideration an original resolution dismissing the election
contest in the Fourteenth Congressional District of Illinois,
report the same to the House with recommendation that the
resolution be agreed to.
COMMITTEE ACTION
On April 28, 2021, by a voice vote, a quorum being present,
the Committee agreed to a motion to report the resolution
favorably to the House.
COMMITTEE OVERSIGHT AND FINDINGS
In compliance with House Rule XIII, clause 3(c)(1), the
Committee states 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 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. XXX, 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 January 4, 2021, James ``Jim'' Oberweis (``Contestant'')
filed a Notice of Contest with the Clerk of the House of
Representatives pursuant to the Federal Contested Election Act
(FCEA).\1\ Contestant ran as the nominee of the Republican
Party for the office of Representative to the United States
Congress representing the Fourteenth Congressional District of
the State of Illinois in the November 3, 2020, general
election. The other principal candidate for the Fourteenth
Congressional District was incumbent Democrat Lauren Underwood
(``Contestee''). On December 4, 2020, the Illinois State Board
of Elections certified the results as follows: Contestee
received 203,209 votes (50.67%) and Contestant received 197,835
votes (49.33%), a margin of 5,347 votes. Contestant filed this
Notice of Contest on January 3, 2021.
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\1\2 U.S.C. Sec. Sec. 381-396.
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BASIS OF CONTEST
In his Notice of Contest, Contestant alleges that the
official election results for the Fourteenth Congressional
District of Illinois should be invalidated due to alleged
violations of the Equal Protection Clause related to alleged
unequal administration of the election by local authorities.
Contestee further alleges a variety of violations of Illinois
election law, fraud, and other irregularities. Contestant
alleges that, but for the alleged fraud, irregularities and
statutory and constitutional violations, Contestant would have
won the November 3, 2020, election for the Fourteenth
Congressional District. Contestant asks that, among other
relief, the House order that all vote-by-mail ballots cast in
the election be invalidated, a recount, and, in the
alternative, deem the November 3 election ``null and void'' and
order a new election pursuant to the authority of Article I,
Section 5 of the United States Constitution.\2\
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\2\See generally Notice of Contest, Oberweis v. Underwood
(``Notice'').
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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 Republican nominee and
his name appeared as a candidate for the Fourteenth
Congressional District on the official ballot for the November
3, 2020, election, thereby satisfying the standing requirement.
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\3\2 U.S.C. Sec. 382(a).
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TIMING/NOTICE
FCEA requires that a contestant ``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.''\4\
The Notice of Contest was filed with the Clerk of the House of
Representatives on January 4, 2021, and was subsequently served
upon Contestee. Contestee disputes whether Contestant timely
served the Notice of Contest.\5\
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\4\Id.
\5\Because the Committee determines that Contestant's claim
warrants dismissal on the merits, the Committee exercises its
discretion not to address Contestee's arguments regarding the alleged
failure of timely service. See Tataii v. Abercrombie, H. Rep. 111-68,
at 3 (2009).
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RESPONSE BY CONTESTEE
On February 3, 2021, Contestee filed a Motion to Dismiss
Contestant's Notice of Contest in response to Contestant's
Notice of Contest challenging the results of the 2020 General
Election for the Fourteenth Congressional District of the State
of Illinois. Contestee maintains that the contest against her
should be dismissed because Contestant failed to set forth with
particularity, as required by 2 U.S.C. Sec. 382(b), grounds
sufficient to change the result of the election.\6\
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\6\Pursuant to Committee Resolution 117-10, the Contestant filed a
response in opposition to the motion to dismiss and the Contestee filed
a reply in support of the motion to dismiss. See Contestant's Response
to Contestee's Motion to Dismiss Notice of Contest (``Response'');
Contestee's Reply in Support of Motion to Dismiss Contestant's Notice
of Contest.
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STANDARD FOR GRANTING MOTION TO DISMISS
The House of Representatives has the constitutionally-
vested power to judge its own elections.\7\ The FCEA sets forth
procedures under which an eligible losing candidate may bring a
contest to the House of Representatives following certification
of the election. Under the FCEA, the ``burden is upon [the]
contestant to prove that the election results entitle him to
contestee's seat.''\8\ A contestant therefore ``must proffer
allegations that, if proven, would have altered the election
outcome.''\9\ 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.\10\ To that end, the
contestant must show that ``through fraud, misconduct, mistake,
or irregularities the results of the election would have been
different.''\11\ Accordingly, to survive a motion to dismiss,
the contestant must credibly allege that there are ``a
sufficient number of potential votes in actual contention to
warrant the committee granting the relief sought.''\12\
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\7\U.S. Const. art. I, Sec. 5 (``Each House shall be the Judge of
the Elections, Returns and Qualifications of its own Members.'').
\8\2 U.S.C. Sec. 385.
\9\Russell v. Brown-Waite, H. Rep. 110-178, at 3 (2007).
\10\2 U.S.C. Sec. 385.
\11\Young v. Mikva, H. Rep. 94-759 (1975).
\12\ Tunno v. Veysey, H. Rep. 92-626 (1971), at 3-4 (1971); see
also Anderson v. Rose, H. Rep. 104-852, at 9-13 (1996) (dismissing
contest where claims for which contestant provided specific and
credible allegations of irregularities did not impact sufficient number
of votes to alter the election outcome); McCuen v. Dickey, H. Rep. 103-
109, at 7 (1993) (dismissing contest where contestant failed to present
``credible evidence of irregularities sufficient to change the result
of the election''); Peterson v. Gross, H. Rep. 89-1127, at 4 (1965)
(dismissing contest where ``even if the alleged . . . irregularities
had . . . existed[,] there is no proof the results of the election
would have been different'' (quotation omitted)).
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The FCEA standard for reviewing the allegations in a motion
to dismiss blends ``Rules 12(b)(6) and 56 of the Federal Rules
of Civil Procedure.''\13\ As under Rule 12(b)(6), a
contestant's allegations cannot merely be possible; they must
at least be plausible. But a contestant must also provide
``sufficient supportive evidence'' to render the allegations
credible, and cannot simply rely ``on general, or disproven
claims of fraud or irregularities.''\14\ This is ``similar to
the standard a judge would utilize in viewing the evidence at
issue in a Rule 56 motion for summary judgment.''\15\
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\13\Dornan v. Sanchez, H. Rep. 105-416, at 8 (1998).
\14\Tunno v. Veysey, H. Rep. 92-626, at 3 (1971); accord Anderson
v. Rose, H. Rep. 104-852, at 6-7 (1996).
\15\Dornan v. Sanchez, H. Rep. 105-416, at 9 (1998); see also
Anderson v. Rose, H. Rep. 104-852, at 7 (1996) (``[T]he standard
balances the need of the House to allow for [meaningful] discovery
while recognizing that mere notice pleading is insufficient in the face
of credible contrary evidence.'').
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ANALYSIS
The Committee finds that Contestant has failed to make a
credible and specific claim that he is entitled to office.
Contestant has not credibly alleged that a sufficient number of
votes are in contention to place the result of the election in
question.
Contestant first maintains that his equal protection claims
are sufficient, by themselves, to overcome the 5,347-vote
margin. The alleged violations of the Equal Protection Clause
relate to the mailing and counting of vote-by-mail ballots.
Contestant maintains that the Equal Protection Clause was
violated because certain county clerks, for example the Kane
County Clerk, allegedly mailed vote-by-mail applications to a
larger universe of registered voters than other county clerks
and allegedly counted vote-by-mail ballots that were not
initialed by election judges, whereas other county clerks did
not.\16\ According to Contestant, if all vote-by-mail ballots
in Kane County are invalidated, and the candidates' vote totals
are ``proportionately reduced,'' Contestant would prevail by
over 9,300 votes.\17\ Contestant makes no allegation as to the
potential impact of these alleged equal protection violations
on the vote totals from other counties in the Fourteenth
Congressional District.
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\16\See Notice 25; Response at 25-26.
\17\Notice 25.
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Even assuming Contestant's equal protection claims are
cognizable--a factual and legal question this Committee need
not, and does not, reach--Contestant would not be entitled to
the relief he seeks because, as a general matter, the
constitutionally appropriate remedy for alleged inequities in
the administration of elections is not to invalidate votes.\18\
The constitutional presumption against invalidation of votes as
a remedy for alleged equal protection violations premised on
inconsistencies in the administration of election laws is
consistent with this Committee's longstanding practice of
counting all ballots validly cast by eligible voters where the
voters' intent is clear.\19\
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\18\King v. Whitmer, ---F. Supp. 3d ---, 2020 WL 7134198, at *9
(E.D. Mich. Dec. 7, 2020) (holding that ``de-certifying'' facially
valid votes is not a proper remedy for an equal protection claim
premised on alleged irregularities in the processing and tabulation of
votes by election officials); Donald J. Trump for President, Inc. v.
Boockvar, ---F. Supp. 3d---, 2020 WL 6821992, at *1-2,*12 (M.D. Pa.
Nov. 21, 2020) (holding that ``invalidat[ing]'' facially valid votes is
not a proper remedy for equal protection claim premised on alleged
inconsistencies in the administration of state election laws), aff'd
830 Fed. App' 377 (3d Cir. 2020).
\19\See Roush or Chambers, H. Rep. 87-513, at 22-28 (1961); Kyros
v. Emery, H. Rep. 94-760, at 5 (1975); Tunno v. Veysey, H. Rep. 92-626,
at 4-10 (1971) (collecting treatises, cases); In reAlford, H. Rep. 86-
1172 (1959).
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Contestant makes no allegation that the intent of the
thousands of vote-by-mail voters whose ballots Contestant seeks
to invalidate is unclear. Because the remedy Contestant seeks
would improperly disenfranchise voters based on alleged
administrator error alone, these allegations cannot help him
carry his burden to plead grounds ``sufficient to change [the]
result of [the] election.''\20\ Contestant offers no reason why
the county election officials' alleged inconsistencies in
disseminating vote-by-mail applications and processing vote-by-
mail ballots warrant denying the franchise to the thousands of
voters whose votes Contestant seeks to invalidate. Accordingly,
the Committee concludes that Contestant has not made a credible
and specific claim that the alleged equal protection violations
would lead to any reduction in the 5,347-vote margin.
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\20\See 2 U.S.C. Sec. 383(b)(3).
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Contestant further alleges several violations of Illinois
law, fraud, and other irregularities. In particular, Contestant
alleges, among other theories, that certain individuals not
legally residing within the Fourteenth Congressional District
voted in the election, that certain individuals were improperly
denied the right to vote provisionally, that certain vote-by-
mail ballots were improperly stored in unsealed boxes, that
certain vote-by-mail ballots were counted even though they were
requested or cast outside of statutory deadlines, and that, in
one county, more ballots were cast than voters who voted. Even
assuming Contestant's additional claims are valid--again, a
factual and legal question this Committee need not, and does
not, reach--Contestant concedes that the aggregate number of
votes in contention related to these remaining claims are
insufficient, by themselves, to change the outcome of the
election.\21\
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\21\Notice 24 & n.2, 29 (proposed reductions to remedy all
allegations of voter fraud would net fewer than 2,000 votes).
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Because Contestant has not alleged that the number of votes
legally in dispute is sufficient to alter the outcome of the
election, the Committee finds that Contestant has failed to
make a credible and specific claim that he is entitled to
office.
CONCLUSION
For the reasons discussed above, the Committee concludes
that this contest should be dismissed.
MINORITY VIEWS
The Minority disagrees with the Majority's decision to
proceed immediately to an analysis of the merits\1\ despite
clear procedural defect and would dismiss the contest solely on
procedural grounds without reaching consideration of the
merits.
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\1\The Minority does not adopt or join the Majority's analysis of
the merits of the Contest.
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DISMISSAL OF COMPLAINT ON PROCEDURAL GROUNDS
The Federal Contested Elections Act (FCEA) requires a
Contestant to file a Notice of Contest with the Clerk of the
House of Representatives and to serve the Contestee within 30
days of the state certification of the election. The FCEA
permits five methods of service: (1) by delivering a copy to
contestee personally; (2) by leaving a copy at contestee's
house or usual place of abode; (3) by leaving a copy at
contestee's ``principal office or place of business with some
person then in charge thereof;'' (4) ``by delivering a copy to
an agent authorized by appointment to receive service of such
notice;'' and (5) ``by mailing a copy by registered or
certified mail addressed to contestee at his residence or
principal office or place of business. Service by mail is
complete upon mailing.''\2\
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\2\Federal Contested Election Act, 2 U.S.C. Sec. 382 (1996).
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In this case, there is no dispute that Contestant's Notice
of Contest was filed properly and timely with the Clerk of the
House on January 4, 2021, and that the FCEA required Contestant
to complete proper service of process on the Contestee no later
than January 4, 2021. However, Contestant's service of the
Notice of Contest upon Contestee was not timely and failed to
qualify as an acceptable method of service pursuant to the
FCEA.
ANALYSIS
In response to Contestee's Motion to Dismiss, Contestant
argues that service of process was effected on January 4, 2021,
in accordance with the FCEA in one of following three ways: (1)
by leaving a copy of the Notice of Contest with the Clerk of
the House for Contestee; (2) by leaving a copy of the Notice of
Contest under Contestee's office door in the Longworth House
Office Building; or (3) by mailing a copy of the Notice of
Contest to Contestee's office in Washington, D.C.\3\ Finally,
despite Contestant's contention that service was proper and
timely, Contestant also argues in the alternative that any
alleged defect in service upon Contestee should be waived by
the Committee and the contest be decided solely on the merits.
However, Contestant's claims clearly fall short of the
requirements for proper service in the FCEA.
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\3\Service of the notice of contest upon a contestee may also be
effected by: (1) by delivering a copy to him personally; or (2) by
leaving a copy at his dwelling house or usual place of abode with a
person of discretion not less than sixteen years of age then residing
therein. 2 U.S.C. Sec. 382(c).
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1. Leaving a copy of the Notice of Contest with the Clerk of the House
for Contestee
On January 4, 2021, the Contestant's agent delivered a
Notice of Contest, addressed to Lauren Underwood, Washington,
D.C., Office, 1118 Longworth House Office Building, Washington,
D.C. 20515, to Clerk of the House Cheryl Johnson. While the
Longworth House Office Building (Longworth) and the Capitol
Complex are places of business for Members of Congress, the
Clerk of the House's office is not Contestee's principal
office, nor is the Clerk of the House the ``person in
charge''\4\ of Contestee's principal office in Longworth.
Finally, the Clerk of the House has not qualified as an agent
of Contestee. Therefore, delivery of the Notice of Contest to
the Clerk of the House is not proper service of process
pursuant to the FCEA under any proffered theory.
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\4\Id.
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2. Leaving a copy of the Notice of Contest under Contestee's office
door in Longworth House Office Building
Contestant argues that, on January 4, 2021, after knocking
and receiving no answer at the door of Contestee's office in
Longworth House Office Building, Contestant's agent attempted
to complete service by leaving a copy of the Notice of Contest
under Contestee's office door. However, the language of the
FCEA is clear that, for service of process to be proper using
this method, the Notice of Contest must be left with an
individual in charge of the office, such as the Chief of Staff
or the Office Manager. Placing a copy of the Notice of Contest
under the door of an empty office is not sufficient to fulfill
the requirements prescribed by the FCEA and therefore does not
qualify as proper service of process.
3. Mailing a copy of the Notice of Contest to Contestee's Washington,
D.C., office
In an affidavit, Contestant's agent stated that she placed
a copy of the Notice of Contest, addressed to Lauren Underwood,
Washington, D.C., Office, 1118 Longworth House Office Building,
Washington, D.C. 20515, in a post office collection box in
Waukegan, Illinois, on January 4, 2021. However, the postmark
on the outer envelope of the Notice of Contest depicts a date
of January 5, 2021, one day after the service of process
deadline.\5\
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\5\See Pomales Aff. (Contestant's Ex. B.)
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Contestant explains that mail deposited with post office
collection locations in rural areas of northern Illinois is
transported the next day more than fifty miles to Carol Stream,
Illinois, for postmarking and processing. Nevertheless,
postmarks are the widely accepted evidence for determining the
date and time of mailing. Therefore, despite assertions to the
contrary by Contestant, a mailing with a January 5, 2021,
postmark does not constitute timely service upon Contestee.
4. Any alleged defect should be waived by the Committee
Lastly, Contestant contends that if the Committee
determines that the service of the Notice of Contest upon
Contestee was not proper, the Committee should elect to waive
that defect and move immediately to consideration of the merits
of the election contest. Specifically, Contestant claims that
he has demonstrated ``good cause'' for waiver because he
attempted to leave a copy of the Notice of Contest with someone
in charge at Contestee's Longworth office, yet was unable to do
so because House Offices were vacant due to COVID-19 protocols.
He further states that ``if a global pandemic, emptying House
chambers of personnel who would ordinarily accept service is
not `good cause' for a 48-hour delay in service, then nothing
is.''\6\
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\6\See Contestant's Response to Contestee's Motion to Dismiss
Notice of Contest, Oberweis v. Underwood, at 8.
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In support of his argument for waiving his defect in
service, Contestant relies on an election contest filed with
the House in the 111th Congress in which the Committee decided
to evaluate the merits of the Contestant's claims even though
the Notice of Contest was served untimely. In that contest, it
appears that the Contestant may have received inaccurate advice
with respect to the filing deadline.\7\ While Contestant is
correct that most House Offices (perhaps even Contestee's) were
then vacant due to the COVID-19 protocols, this mere fact does
not warrant the Committee waiving the deadline for timely and
proper service. There is no doubt that physical presence in the
House Office buildings was significantly limited on January 4,
2021. However, leaving a copy of a Notice of Contest at the
Contestee's principal office or place of business with a person
then in charge thereof was not the only method of service
available to Contestant. Despite the difficulties described,
this method is the one that he, to his own legal detriment,
chose to use.
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\7\Tataii v. Abercrombie, H. Rept. 111-68 (2009).
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CONCLUSION
Contestant failed to effect proper and timely service of
process on Contestee, a fatal procedural error. Contestant
could have used any of the five methods of service of process
provided under the FCEA to effect proper and timely service
upon Contestee.\8\ He chose to attempt service by delivering a
copy of the Notice of Contest to the Contestee's principal
office or place of business in the care of a person in charge;
however, the Contestant failed in this attempt. None of
Contestant's other legal theories is sufficient to cure this
clear procedural defect. Finally, the Minority notes that other
Contestants who filed election contests with the House for the
117th Congress did not suffer such issues with completing
proper and timely service of process upon the relevant
Contestees.
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\8\2 U.S.C. Sec. 382.
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For the reasons stated above, the Minority would dismiss
the Notice of Contest solely on procedural grounds without
reaching consideration of the merits.
Rodney Davis,
Ranking Member,
Committee on House Administration.
[all]