[House Report 111-68]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-68
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DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE FIRST CONGRESSIONAL DISTRICT OF HAWAII
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March 31, 2009.--Referred to the House Calendar and ordered to be
printed
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Mr. Brady of Pennsylvania, from the Committee on House Administration,
submitted the following
R E P O R T
[To accompany H. Res. 303]
The Committee on House Administration, having had under
consideration an original resolution dismissing the election
contest relating to the office of Representative from the First
Congressional District of Hawaii, report the same to the House
with the recommendation that the resolution be agreed to.
DISMISSING THE ELECTION CONTEST IN THE FIRST CONGRESSIONAL DISTRICT OF
HAWAII
The Committee on House Administration, having had under
consideration an original resolution dismissing the election
contest against Neil Abercrombie, report the same to the House
with the recommendation that the resolution be agreed to.
COMMITTEE ACTION
On March 25, 2009, by voice vote, a quorum being present,
the Committee agreed to a motion to report the resolution
favorably to the House.
COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee states that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
STATEMENT ON BUDGET AUTHORITY AND RELATED ITEMS
The resolution does not provide new budget authority, new
spending authority, new credit authority or an increase or
decrease in revenues or tax expenditures. Thus, clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
the provisions of section 308(a)(1) of the Congressional Budget
Act of 1974 are not applicable.
STATEMENT OF FACTS
On January 16, 2009, Steve Tataii (``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 First Congressional District of the
State of Hawaii in the November 4, 2008 general election. The
other principal candidate for the First Congressional District
was incumbent Democrat Neil Abercrombie (``Contestee''). On
November 24, 2008, the Office of Elections for the State of
Hawaii certified the results of the November 4th election:
Contestee received 154,208 votes (70.6%) and Contestant
received 38,115 votes (17.4%), a margin of 116,093 votes.
Contestant filed this Notice of Contest on January 16, 2009. In
addition to the Notice of Contest, Contestant also filed an
elections contest in the Supreme Court of Hawaii on November
24, 2008.
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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 First Congressional District
of Hawaii should be invalidated because Contestee deliberately
avoided a debate with Contestant, thus depriving the voters in
the First Congressional District of their right to watch a
debate between the two candidates. Contestant alleges that, but
for Contestee's alleged refusal to debate Contestant,
Contestant would have won the November 4, 2008 election for the
First Congressional District.
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 First Congressional
District on the official ballot for the November 4, 2008
general election, thereby satisfying the standing requirement.
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\2\2 U.S.C. Sec. 382(a).
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TIMING/NOTICE
The Notice of Contest has been served upon Contestee and
was filed with the Clerk of the House of Representatives on
January 16, 2009.
ANALYSIS
On a threshold matter, the Contestant's Notice of Contest
was filed untimely with the Clerk of the House of
Representatives. The FCEA states that:
``Whoever, having been a candidate for election in
the last preceding election and claiming a right to
such office, intends to contest the election of a
Member of the House of Representatives, shall, within
thirty days after the result of such election shall
have been declared by the officer or Board of
Canvassers authorized by law to declare such result,
file with the Clerk and serve upon the contestee
written notice of his intention to contest such
election.''\3\ (emphasis added)
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\3\2 U.S.C. Sec. 382(a).
In this instance, the State of Hawaii, Office of Elections
has the authority to declare elections under state law. The
certificates of election were signed by the Chief Election
Officer for the State of Hawaii, Kevin B. Cronin, and were
dated November 24, 2008.\4\ Pursuant to Section 382(a) of FCEA,
Contestant would have had to file his Notice of Contest by
December 24, 2008 in order to be timely. Contestant filed his
Notice of Contest with the Clerk on January 16, 2009.
Contestant did file an elections contest in the Supreme Court
of Hawaii in an attempt to exhaust his remedies, and
accordingly, under Hawaii state law, the certificate of
election for the First Congressional District was not delivered
by the Office of Elections to the U.S. House of Representatives
until a final determination was made in state court on the
contest (December 16, 2008).\5\ While the certificates of
election were not delivered to the House of Representatives
until December 16, 2008, FCEA expressly states that a Notice of
Contest must be filed within thirty days of the election
results being declared. Contestant's Notice of Contest was
therefore untimely. However, it is acknowledged that the
Contestant may have received inaccurate advice on exhausting
his remedies and timely filing. Therefore, the Committee will
evaluate Contestant's claims on their merits.
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\4\Hawaii Rev. Stat. 11-155 states that ``On receipt of certified
tabulations from the elections officials concerned, the chief elections
officer or county clerk in county elections shall compile, certify, and
release the election results after the expiration of time for bringing
an election contest. The deadline to file an election contest for the
November 4, 2008 general election was November 24, 2008. HRS Sec. 11-
174.5.
\5\HRS Sec. 11-156.
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The Committee further finds that Contestant has failed to
make a credible and specific claim that he is entitled to
office. To mount a successful challenge, Contestant must
proffer allegations that, if proven, would have altered the
election outcome. In his Notice of Contest, Contestant's sole
allegation supporting his contest is that, but for Contestee's
refusal to debate him, Contestant would have won election to
the First Congressional District. Contestant surmises that
Contestee refused to debate him to avoid having to answer
Contestee's alleged conduct prior to the 2002 primary election
that Contestant alleges was false and misleading and deprived
Contestant of a primary election victory, and consequently,
election to the Second Congressional District in the 2002
general election. Contestee was elected to represent the First
Congressional District of Hawaii in November 2008 by a margin
of 116,093 votes. Contestant has failed to provide any
information demonstrating that a public debate was necessary to
communicate with the voters in the First Congressional
District; in fact, his attached evidence to his Notice of
Contest demonstrates that he was able to assert his allegations
against Contestee publicly and openly in on-line media.
Contestant has proffered no evidence that a public debate would
have altered the outcome of the November 4th election.
Contestant's allegations are no more than unsupported
speculation and his claims do not cast sufficient doubt on the
results of the election to merit further investigation. For the
Committee to come to any other conclusion would be to remove
the presumption of regularity that attaches to the state
certification of the election results and would make all House
elections open to contest and investigation based on mere
conjecture or speculation. The Contestant has failed to meet
his required burden under the FCEA.\6\
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\6\2 U.S.C. Sec. 385.
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CONCLUSION
For the reasons discussed above, the Committee concludes
that this contest should be dismissed.