ADOPT AND DISTRIBUTE PROPOSED COUNTING

RULES

THURSDAY, FEBRUARY 28, 1985

HOUSE OF REPRESENTATIVES,

TASK FORCE ON THE

INDIANA EIGHTH CONGRESSIONAL DISTRICT,

COMMITTEE ON HOUSE ADMINISTRATION,

Washington, DC.

The task force met at 10:30 a.m., pursuant to call, in room 304, Cannon House Office Building, Hon. Leon E. Panetta (chairman of the task force) presiding.

Present: Representative Panetta.

Staff present: Charles T. Howell, chief counsel, and Karl J. Sandstrom, deputy counsel/elections, House Administration; and William H. Schweitzer, minority consultant, and Kathee McCright, senior legislative assistant, minority.

Mr. PANETTA. The Task Force on the Indiana Eighth Congressional District will come to order.

First of all, I would indicate for purposes of the record that I have talked to both Mr. Clay and Mr. Thomas, members of the task force. They are occupied with the Accounts Subcommittee with the full committee, and are in the process of discussing budgets with committee chairmen. The particular chairman coming up at this point is the chairman of the Ways and Means Committee so one can understand the obvious concern about leaving the subcommittee at this point.

However, they have agreed that I would proceed to indicate what we will be doing and the agreements that have been made by the members for purposes of the record, and that they have concurred in the agenda that I will proceed with.

STATEMENT OF HON. WILLIAM (Bill) Clay, a REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI

Mr. Chairman, I am disappointed that the Task Force is unable to propose counting rules today as originally intended. However, I recognize both the difficulty and the necessity of determining what the election laws and practices of Indiana are. Regardless of what this determination finally reveals, however, this Task Force must not forget the importance of protecting the franchise of the citizen. Absent compelling reasons to the contrary, it is my view that this Task Force should seek to give great deference to voter intent. I remain confident that we will meet our final deadline and I pledge my continued cooperation to Mr. Panetta and Mr. Thomas to achieve that end.

Mr. PANETTA. First of all, let me state that pursuant to the timetable that we were operating under we would today meet to adopt

and distribute proposed counting rules, and this is also the deadline for the filing of any irregularities.

On the filing of irregularities we have not, at least to this point, received any filing along those lines relating to irregularities in the election. However, the parties do have until noon time today to fulfill that requirement. And this is a reminder to the parties if in fact that is to be the case. But at least to this point we have not received any filings on irregularities.

Second, with regards to the adoption and distribution of proposed rules, this is an area where staff has been meeting over a period of a number of hours trying to develop an approach along these lines. Obviously, the choices are limited here. The key issue is that we provide due deference to State law while obviously giving force and effect to the will of the electorate of the Eighth Congressional District.

The States laws are complex and, obviously, it's clear that election officials charged with implementing these laws varied in terms of how those responsibilities were in fact fulfilled. But, nevertheless, I think it's important to try to give due deference to that law as it was implemented.

The House is obviously confronted with the principal issue of how to deal with the votes of a large number of voters-some 5,000 who took the time and assumed the responsibility and cast their vote, but whose votes have not been counted for one reason or another related to in large measure problems with election officials. It is not an issue, obviously, to develop those final rules, and to establish those kinds of strict counting rules is obviously the challenge that this task force is facing. Whatever rules we establishclearly, one of my concerns is that we don't get involved in the possibility of disenfranchising even more voters in terms of the final vote count.

How then should the votes be counted? That's essentially the issue that we are struggling in attempting to reach an accord on. Each of the members of this task force-and I might say for the public record-have approached this issue in good faith. I can assure you that the task force, in considering the rules, are not going to consider rules on the basis of a predetermined result, but on the basis of what implements the will of the voters-the electorate, in the Eighth District.

The task force has made very clear that its decisions will be on the record, open to the public, and expressly supported by reason that the task force finds compelling.

Now, this task force takes its responsibility very seriously. And, frankly, as chairman of this task force, I don't intend to be manipulated by partisanship on either side. We have a very serious responsibility here to try to develop the best rules we can to ensure that the will of the electorate is implemented.

I realize the shots that are being fired over our heads every day. But my position, as I said at the beginning, that I approach this job on a judicial basis, and that I am not going to comment on that kind of partisanship, but I am going to proceed with trying to develop rules that I think implement the law and certainly implement the will of the electorate.

The members of the task force have unanimously agreed that on the basis of an approach here to try, over the next few days, to try to reach an agreement that balances the various competing interests that serve this House and the voters of the Eighth District.

The approach that has been agreed to is as follows, and this is really in the form of directions to the staff.

One, that by Tuesday, of March 5, that you present to the task force the following: an analysis of the instructions that were provided to the election officials under Indiana law. And as an aside, I understand that there were a number of instructions-I guess there were principal instructions that were issued at the State level and also additional instructions in some cases distributed at the local level. But the point is to try to define as clearly as possible what those instructions were to the election officials.

Second, to determine how those instructions were applied-the application of the rules that were provided to those officials, and how they were applied in each of the 15 counties.

Third, then-and this may be more for the members than for the staff-we will then develop rules for counting based on that analysis.

Now, I want to make clear that in arriving at that point, my approach will be to, again, give due deference to Indiana law as much as possible. And if not possible, then to ensure that we develop acceptable standards that are in accord with the will of the voters. The emphasis of my approach-and I speak personally and I think I speak on behalf of the other members-is that we intend to ensure that we do everything possible to implement the will of the voters, the will of the electorate.

So, in line with that, those are the instructions to the staff. I would urge you to this is not going to be easy-but it is very important that you sit down over the next few days and outline exactly what I have indicated here. Then on Tuesday, the task force will sit down and analyze what you have presented. And based on that, we will then proceed, as I said, developing the rules, which it is my intent to stick to the schedule with regards to that, and by the end of next week, have rules of counting established, so that we can begin the actual counting the weeks following.

I have made a commitment to both the House and to the members of the committee, and to the chairman of the committee, that we will do everything possible to try to report to the House by the end of March. It's subject, obviously, to what Mr. Thomas said at the last meeting, which is that we want to-our first priority is to do a good job. And our second priority is to meet these deadlines. I am hoping that we can put both together and meet the deadlines by the end of March.

Are there any comments by staff at this point with regards to those things.

Mr. SCHWEITZER. The only other thing that I understand—I haven't talked to Mr. Thomas, but from people who have talked to him after discussions he had with you-is that if we are going to move from what was done in Indiana, we will have a record of why we are moving from the instructions or the schedule in Indiana.

Mr. PANETTA. Absolutely. This, will all be done on the record. The point of that is to make a determination of just in fact how the

rules were applied, what happened in each of the counties. And then based on that kind of record, we will then make a judgment as to what are the rules that we will abide by in our count.

Then I guess the second major issue is once we get over that hump is to make an assessment of what votes will be subject to the count at that point, whether we proceed with all votes being counted or whether we can stipulate with regards to the votes that have already been counted-I don't know. But that's obviously the next issue that I would want to resolve. And then based on that, I would want to then proceed with getting GAO auditors out into the field as soon as possible.

As you know, we are operating under the rule that requires a unanimous decision by the task force to in fact agree that no votes will be counted, or what votes will not be counted. And I will implement that in terms of deciding. But if we can't get a stipulation on what votes we will accept-and, obviously, it means that we are going to count all of the votes. And in that instance, very frankly, the GAO auditors have a hell of a job. So, that's what I want to try to get at least the rules of the game down as fast as possible. Staff on the majority side have anything?

[No response.]

Mr. PANETTA. The last point I would like to make, and it's in line with what I want to do in the rules of the committee that we have established, that we would ensure that everything is open to the public. And on the record I would like to, without objection, include for the record, the studies that have been done that have been distributed to the members so that the public is aware of what has been officially distributed to the members. (See Appendix B.)

That is essentially the following-I think each of the members has these.

The Application of State Laws-these are CRS studies, by the way, Congressional Research Service studies-the Application of State Laws and State Court Decisions. Second, the House Precedents that are involved in contested election cases. The Analysis of Indiana Court Decisions that we have also received from CRS. The Procedure for House Contested Election Cases. And the Impoundment of Election Ballots in a contested election case. (See Appendix B.)

I would also like to make available in the record, a copy of the telegram that we sent to the election officials in Indiana regarding the security of the ballots.

And if there is any documents that minority feels you want to make part of the record, please provide me that list and I would be happy to do that.

[The telegram follows:]

(See attached list for addressees.)

[Western Union Telegram]

WASHINGTON, DC, February 13, 1985.

Under Article I, Section 5 of the Constitution of the United States, the U.S. House of Representatives shall be the judge of the elections, returns and qualifications of its members. Pursuant thereto, the House of Representatives, on January 3, 1985, adopted House Resolution 1, which directed the Committee on House Administration to review the election in the 8th Congressional District of Indiana.

In conjunction with its review, the Committee asks that you protect and keep safe all originals and copies of books, records, correspondence, memoranda, papers, and