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111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     111-68

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



 
       DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF 
     REPRESENTATIVE FROM THE FIRST CONGRESSIONAL DISTRICT OF HAWAII

                                _______
                                

   March 31, 2009.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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)
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \6\2 U.S.C. Sec. 385.
---------------------------------------------------------------------------

                               CONCLUSION

    For the reasons discussed above, the Committee concludes 
that this contest should be dismissed.