Case No. 1.-Chrisman vs. Anderson (1960). The House recounted the votes because there were allegations of fraud and illegal activity.

Case No. 2.-Chaves vs. Clever (1867). Vote fraud, ballot box stuffing, voter intimidation, and various other illegal activities were alleged and later proven.

Case No. 3.-Thomas R. Reeves (1871). No one from Tennessee was seated in the House in that year because a suit was brought on the grounds that the election was held on the wrong day, thus making their certificates of election invalid.

Case Nos. 4 and 5.-J. P. M. Epping and R. T. Daniels (1871). There is no information available regarding these South Carolina and Virginia cases. Mr. Alexander presents none and only a couple of lines are given to it in the Globe and Journal for that date. It is likely these cases involved voting irregularities, considering the nature of elections in the South during the reconstruction era.

Case No. 6.-Whitmore vs. Herndon (1871). The House delayed seating Mr. Herndon because there were serious questions as to the legality of his Texas certificate of election.

Case No. 7.—Wigginton vs. Pacheco (1878). Again there were allegations of illegality. A county clerk in Monterey County, California had fraudulently changed the vote totals.

Case No. 8.-Chalmers vs. Manning (1884). In this case, the Clerk of the House did not receive a certificate of election from either candidate. Additionally, again there were allegations of vote fraud, corrupt election officials and intimidation tactics.

Case No. 9.-Kemp vs. Sanders (1934). This case involved the filling of a vacant seat caused by the death of a member. It was alleged that the Governor of the State of Louisiana had broken state law by having the election on only 9 days notice. Furthermore, there were two contrary election certificates submitted to the clerk of the House, one issued by the Secretary of State and a second by a Citizens Election Committee.

Case No. 10.-Roush vs. Chambers (1961). This case deserves special mention because it has been repeatedly alluded to as "proof" that the House has precedent in not seating Mr. McIntyre. The Democrats have repeatedly pointed to this case as closely paralleling the present situation. I quote the distinguished gentleman from Texas, Mr. Wright, who refers to this case as "similar, in fact almost identifical" to the case now before the House. Mr. Wright goes on to assert that the Roush vs. Chambers case "forms the closest on-point precedent to the present situation."

In fact, these two cases are so dissimilar that the only valid comparison which can be drawn is that they were both close elections which occurred in Indiana. Let me briefly state the facts of the case. The Secretary of State of Indiana issued a certificate of election to Mr. Chambers. Soon thereafter the Secretary's term expired. The new Secretary of State, after investigating allegations of fraud in the election, sent a sworn statement to the Clerk of the House charging that the original certificate of election was invalid. Because there was no recount provision for Congressional elections under Indiana law at the time, the House Elections Committee conducted a recount.

There are thus three crucial distinctions between Roush vs. Chambers and the present situation:

(1) The legality of the certificate of election was in serious and legitimate question.

(2) There were allegations of fraud.

(3) There was no provision for a recount at that time under Indiana law, thus the House had to undertake the recount on its own.

None of these factors are true in the disputed McIntyre election.

I hope that this forever ends the theory that the House has precedent on its side in not seating Mr. McIntyre. Let me make clear one important point. I am not suggesting that the House does not have the right to investigate this election. The House has the constitutional right to investigate any election it so chooses. I am asserting today that the House should follow its own precedent and seat the duly certified candidate until the investigation is completed.

Since 1933 the House of Representatives has investigated over 80 close elections. In only 2, Kemp vs. Sanders and Roush vs. Chambers, was someone not seated. In every other case the duly certified candidate was seated even though the House was conducting an investigation. The fact remains-this action in denying Rick McIntyre his seat in the 99th Congress is completely unprecedented.

If this action is not corrected the House will have set a precedent with terrifying implications. If the House can refuse to seat a duly certified candidate for Congress for no other reason than the election was close, where will this lead us? Perhaps next time, instead of a 34 vote margin of victory being called into question, the

Democrats will decide that a several hundred vote margin of victory is "questionable". With this precedent set, we will truly have a tyranny of the majority.

There is still time to correct this terrible error. If the House votes to seat Mr. McIntyre now, to damage to historical precedent can still be undone. I urge you today to put aside partisan considerations and recommended to the full committee and the House that Mr. McIntyre be granted his seat in Congress pending the outcome of your investigation.

Mr. BARTON. That concludes the panel's testimony. We would be happy to answer any questions.

Mr. PANETTA. Thank you. I thank you all for taking the time and making the presentation and making your points to the task force. Let me just indicate, so that you are clear on what I view the role of this task force to be. Obviously there is a lot of partisanship here, because there is a seat at stake, and frankly both sides think the seat was stolen. I understand that. That is fair game for both sides.

I don't view this as an easy responsibility. It is a very heavy responsibility under the Constitution. And I have made clear that I approach this in a judicial manner because I think this task force cannot be an agent for one side or the other, for one party, for one candidate, but has to be an agent for the House of Representatives. In implementing that responsibility, we tried to establish principles of operation at the very beginning because once the House has made its determination-and we are operating under House Resolution 1, which was adopted by a vote of 238 to 177. I know the gentlemen_that_have_testified do not agree with that. And they have made that clear. But there is a majority vote that mandates us to take action pursuant to this task force. And that is what I am operating under.

We established initially, at the beginning-I might say on a unanimous basis-this was not a partisan basis-certain principles that we felt we had to abide by. And the first principle we set was that it was really not our role to get into judging the Indiana election law or the conduct of Indiana election officials, or the candidates, or their supporters of the House's action. If we ever got into that, we would never get out of it.

Our basic responsibility-and this again was on a unanimous decision by the task force-was that we have a responsibility to judge which candidate received the greatest number of votes for representative in the Indiana Eighth. And once that principle was decided, then our next obligation was to make the decision who got the largest number of votes. And that is what we are in the process of trying to decide.

I recognize your arguments on seating, I recognize the feelings that you have that, obviously, the certificate should have been recognized and that the gentleman should have been seated. But, frankly, we are beyond that decision in terms of the task force, because the role of this task force is to now decide who got the largest number of votes regardless of who the winner is. And that is what we are trying to do right now.

So that I hope, in terms of the role of the task force, the dispute is not with what this task force is trying to do in terms of counting ballots, counting all of the ballots, but that your dispute perhaps may be with the actions of the majority of the House overall. That I understand. But please don't attack the task force for trying to

find out who got the largest number of votes. That is our responsibility under the Constitution, and that is what we are trying to do. Mr. COBEY. Mr. Chairman, I understand in matters of conduct, when there is a question of ethics, that there is a bipartisan committee or task force established. In fact, that is why the Ethics Committee is constituted as equal numbers. And I just wonder why the task force does not have two Democratic members and two Republican members, in the sense of-was that ever discussed, was that ever a possiblity? And nobody has ever told me why it is not bipartisan.

Mr. PANETTA. Every contested election in the past decade or more has gone to the House Administration Committee and been handled by a task force established by the House Administration Committee. It has not gone to the Ethics Committee, it hasn't gone to others. And so we operate pursuant to the rules of the House Administration Committee. And that has been basically the approach we took here. The chairman appointed the task force. We have proceeded to operate in that way.

I might say, just for the record, that again, Mr. Thomas has always presented the concerns of the minority in the situation. But that, generally, we have been able to work together, to try to establish the procedures for counting, the principles that I dictated. There is only one serious area of dispute, and that related to the rules for counting. And there the dispute was whether we should count the ballots that did to have the signatures of the election officials or the precinct numbers.

And it was our feeling that since there was no allegation presented of irregularity or fraud, that we ought to proceed to count all ballots. And that was the dispute. But it is our feeling that in an approach like this, we have a responsibility to count all of the ballots involved here to find out who the winner was. And that generally has been the approach of the task force.

So I think that, fully understanding your position in terms of the fact that the House should have seated Mr. McIntyre, the House voted not to. We have a responsibility to implement. So I hope that, generally, when we come to a final conclusion here, and hopefully we will do that in 2 weeks, that we can present a credible count to the House that the gentlemen will be able to support and we make a recommendation to the House.

Mr. COBEY. Mr. Chairman, do you or counsel know whether task forces in the past have ever been bipartisan? What is the precedent?

Mr. PANETTA. Again, it has opted like subcommittees in the rest of the House where it has been 2 to 1-well, it generally represents whatever the ratio would be in the House. And that has been the case. That has been the way the House Administration Committee has opted, and obviously-let me tell you.

If we had a 2-to-2 thing here, you know, we would never reach a decision. That is part of the problem. We need to get to decisions and get actions done. I realize that it would be nice to have a balanced group. But I am afraid that in the end everyone on the Ethics Committee, unless they have an ultimate majority vote on something, nothing is going to happen.

Mr. CLAY. Mr. Chairman, may I respond to that?

The answer is "No." The closest we ever came in the history of this Congress to a bipartisan committee in affairs like this was when we elected a President of the United States by one vote, and that was an arrangement made to set up a commission, electoral commission, five members from the Senate, where three would be Democrats and two would be Republicans; and five members from the House, where three would be Republicans and two would be Democrats; and five members from the Supreme Court, where two would be Democrats, two would be Republicans, and the fifth person would be an independent.

Now, when that vote came down, it was strictly on party lines. It was eight to seven to seat Hayes, Rutherford B. Hayes over Samuel Tilden. Eight Republicans voting for Hayes and seven Democrats voting for Tilden. And that would be the history, as the chairman said, in most instances when you attempt to set up that kind of a situation.

Mr. PANETTA. If I might ask all of you a question that I think is important here. I don't assume-well, let me ask the question. Do you dispute the authority under the Constitution, article I, section 5, that the House can make a judgment regarding the qualifications of election returns of a Member?

Mr. BARTON. Mr. Chairman, we don't dispute that at all. We realize that the House of Representatives has ultimate jurisdiction. We do dispute the way in which it has been handled. I go back to one of your original answers a minute ago.

The House Resolution 1, on the first day this Congress was sworn in, makes several statements. Those statements that the Majority Leader Wright made in House Resolution 1 until today have never really been investigated. You were charged with a very unenviable task of chairing this task force. It would seem to a logical person that if you are asked to conduct an investigation, which I believe was asked in Hosue Resolution 1, you would actually conduct an investigation before deciding what to do.

You would go in and look at the validity of the election in Indiana, see if it did conform with the election code, and the other congressional elections that were held in that State. You would call testimony, you would ask the apparent loser, Mr. McCloskey, to appear before your tribunal, and prove why he was in fact, or should in fact be declared the winner instead of the loser. That has not happened.

It is admirable on your part to have a hearing after the fact, so to speak, so that a record can be built. But that does not do away with the fact that no real hearing was held until now.

The second thing I would like to bring out. Even today it would not be I think inappropriate for you as chairman of this task force to send a message to the House of Representatives that the certified winner should be seated until the recount that is going on now should be concluded. It is my understanding that about 10 percent of the ballots that they hoped to be counted yesterday were in fact counted.

Now, you made the statement that it should be wrapped up in 2 weeks. I hope you are correct. It could be a month. The initial recount in Indiana started about the second week after the election was held-I said the middle of November-and wasn't completed

until sometime in January. It took approximately 2 months. Now, there are going to be other issues that come before this Congress in the interim that could be very close.

The MX missile vote yesterday, which was 219 to 213, if Mr. McIntyre had been here, it is my understanding he would have voted for that. If Mr. McCloskey had been here, he would have voted against it. Conceivably, that one vote could have made a difference yesterday. It could make a difference today or tomorrow, because it is my understanding that several Members are thinking about switching votes. Two months is a long time. If it is 2 weeks, in my opinion it is too long.

We sincerely——

Mr. CLAY. Mr. Chairman, will the gentleman yield?

Mr. BARTON. I would be more than happy to yield.

Mr. CLAY. Are you suggesting that with over 4,800 votes not counted that we are to just arbitrarily seat somebody?

Mr. BARTON. Mr. Clay, we are not suggesting that. We are stating that this body has every right to go there and look at the recount and look at the election. But since in fact there has not been an allegation of fraud or anything, the original certificate should stand. And in that election, Mr. Clay, November 6, all of the votes were counted, and Mr. McIntyre, by a paper-thin margin, won.

Mr. CLAY. Well, I want to deal with both of those contentions. Mr. Cobey may want to correct his statement that he just issued where he states,

The certificate of election issued to Mr. McIntyre by the Indiana secretary of state was based upon corrected original county certificates representing election day results, not upon any certificate of recount.

You might want to correct that, because the suit of McCloskey versus McIntyre in the U.S. District Court, Southern District of Indiana, Evansville Division, states, and I will quote:

The Indiana Supreme Court granted to *. However, prior to the clerk correcting the arithmetical error, Gibson County completed its recount and the clerk certified a new vote total to the secretary of state based upon the results of the recount.

This is the official Federal Court opinion. So, according to the court opinion, there was a recount.

Now, if you would like to change your statement, you mayunless you have some evidence that we don't have here.

Mr. BARTON. Mr. Clay, if I could respond. We covered some of that territory in your questions to me a little bit earlier. And I may have not been totally correct in our explanation. I have since that time talked with the counsel of the National Republican Campaign Committee and it is their statement to me that the clerk in Gibson County was requested to send in a corrected total to the Secretary of State of Indiana, based on the mathematical errors.

Mr. CLAY. That is correct.

Mr. BARTON. That would have resulted in a certificate of election that should have stated a 39-vote margin instead of a 34-vote margin. And this is an allegation-and the gentleman is not hereit would be nice if the gentleman were here to defend himself-Mr. CLAY. Which gentleman are you speaking about?

Mr. BARTON. The clerk of Gibson County. The allegation is that the clerk of Gibson County, instead of sending in the corrected cer