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113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     113-22

======================================================================



 
       DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF 
 REPRESENTATIVE FROM THE TWENTY-EIGHTH CONGRESSIONAL DISTRICT OF TEXAS

                                _______
                                

   March 19, 2013.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

     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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \2\2 U.S.C. Sec. 382(a).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \3\U.S. Constitution Article I, Section V.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                                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.