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WASHINGTON, DC - House Democratic Whip Steny H. Hoyer (MD) sent the attached letter today to Committee on House Administration Chairman Vernon Ehlers and Ranking Democrat Juanita Millender-McDonald asking the Committee to "develop a set of clear protocols for managing any contest or contests that the Committee faces in November" because "[w]ith the direction of the House likely to turn on a handful of seats, ensuring that contested elections are adjudicated in a fair, transparent, and swift manner is essential."
The full text of the letter is below.
September 28, 2006
The Honorable Vernon Ehlers
The Honorable Juanita Millender-McDonald
Committee on House Administration
U.S. House of Representatives
Washington, D.C. 20515
Dear Chairman Ehlers and Ranking Democratic Member Millender-McDonald:
With many House races expected to be very close this November, there is the real possibility that recounts will occur in several congressional districts, with some outcomes being challenged under the Federal Contested Election Act (P.L. 91-138, 83 Stat. 284). I am deeply concerned that ambiguities and deficiencies in this statute may prolong rather than facilitate the resolution of contested elections by the Committee on House Administration unless the Committee acts now, in a non-partisan and collaborative manner, to develop a set of clear protocols for managing any contest or contests that the Committee faces in November.
As Chairman Ehlers will recall from our service on the House Administration Committee (then the House Oversight Committee) during the last contested House election in 1997-98, FCEA provides for a process for resolving contested elections, starting with the filing of a notice of contest by the loser of the election, the taking of testimony from witnesses, and the holding of hearings on the depositions and papers filed with the Clerk of the House related to the dispute. The statute also places the burden of proof on the challenger to show that sufficient evidence exists to change the outcome of the election.
Until 1997, FCEA had successfully adjudicated 29 contests. However, when we served together on the 1997 contested election task force, FCEA was tested as never before. It quickly became apparent to both Republicans and Democrats serving on the Committee at the time that FCEA, rather than providing the House with clear rules and procedures for resolving a contest, is in two critical respects so ambiguous that it can actually exacerbate an inherently partisan process rather than tame it:
(1) Lack of substantive standards. While FCEA creates a procedural framework modeled after the Federal Rules of Civil Procedure, it offers no substantive guidance for deciding a case. Parties to an election contest have a right to know with certainty the standards by which their claims will be judged.
(2) Discovery confusion. As in litigation, FCEA contemplates that the parties to the contest will conduct discovery, with the House Administration Committee available to adjudicate disputes but not to participate otherwise. Before the 1997 contest, this process had gone untested; no prior dispute under the FCEA had reached the discovery stage. And when the process was tested, it was found profoundly wanting.
Perhaps the most deficient aspect of the FCEA discovery provisions involves the issuing and enforcing of subpoenas. The statute empowers state and federal courts to issue subpoenas on behalf of the parties. But it does not provide any guidance to the courts concerning the subpoenas' proper scope. Nor does the statute expressly authorize the courts to police the subpoenas. Instead, it allows the House Administration Committee to modify or quash them.
To make complicate matters, neither the courts nor the committee has the power to enforce the subpoenas. That falls to the Justice Department under an FCEA provision that makes failure to comply with a subpoena a misdemeanor. Needless to say, this entire process raises significant separation of powers questions. It also raises profound practical problems.
Since the start of the 106th Congress, I have repeatedly urged the Committee on House Administration to schedule hearings on FCEA and undertake a comprehensive revision of this important statute that takes into account the lessons learned in 1997. Even Bill Schweitzer, who has served as a consultant to House Administration Republicans on matters related to FCEA, has agreed that the procedures for processing a contest need to be addressed.
Plainly FCEA will not be revised this Congress. However, there is much the House Administration Committee can do in the days between now and November 7 to minimize the degree to which FCEA's deficienices complicate the Committee's work should one or more contests come before it. I strongly urge Committee Members and staff in the next few days to put aside politics and work together in a collaborative manner to address FCEA's deficiencies and establish a set of clear rules, consistent with FCEA's letter and spirit, for managing contested elections. This collaboration would benefit from the participation of election attorneys whom our respective parties have consulted, as well as the chairmen of our parties' congressional campaign committees.
With the direction of the House likely to turn on a handful of seats, ensuring that contested elections are adjudicated in a fair, transparent, and swift manner is essential. If the last contested House election is any guide, FCEA may not be up to the challenge.
Thank you for your attention and with kindest regards, I am
STENY H. HOYER
cc: Rep. Dennis Hastert, Speaker of the House
Rep. Nancy Pelosi, House Democratic Leader
Rep. James E. Clyburn, Chairman, House Democratic Caucus
Rep. Deborah Pryce, Chairwoman, House Republican Conference
Rep. Rahm Emanuel, Chairman, Democratic Congressional Campaign Committee
Rep. Thomas Reynolds, Chairman, National Republican Campaign Committee
Mr. William Schweitzer, Baker & Hostetler LLP