should issue a certification upon receipt of the corrected original certification from the Gibson County Clerk and took no further action.

This was the only involvement of the federal court in the original certification process. There was no finding that I had violated any law. To the contrary, the judge denied the request for an order that would dictate my course of action.

IV. 8TH DISTRICT MYTHS

Over the course of the last several months, there has been much debate over what did and/or didn't happen in the 8th District. Unfortunately, much of that debate has been rife with myths based on half-truths and outright falsehoods. Some of the worst myths (and the actual facts) are as follows:

Myth No. 1: "Election night returns gave McCloskey a 72 vote lead."

Fact: As indicated above, Mr. McIntyre was the winner based on the first complete unofficial returns on the day after the election, with a 145 vote lead. The first complete official returns, with all known errors corrected, showed Mr. McIntyre the winner by 34 votes. Mr. McCloskey did not gain his "lead" until several days after the election, and then only because a clerk refused to correct an obvious admitted

error.

It is a fact that Frank McCloskey has never led in the 8th District vote totals, except those known to be erroneous.

Myth No. 2: "Under Indiana law, Secretary of State Simcox was required to issue his certification within 10 days of the election regardless of any errors in tabulation known to exist.'

Fact: Indiana election law (IC 3-1-26-7) prohibits the issuance of a certificate of election for at least 10 days after the issuance of the clerk's certification of county totals, and that certification doesn't issue until at least 2 days after the election. Under election law, the Indiana Secretary of State is prohibited from issuing his certification until at least 2 days after the election.

As a practical matter there are invariably several clerks' certifications requiring correction, taking up another six to ten days. By way of example, the winners of Indiana's other nine congressional districts in 1984 were certified on November 26, some 20 days after the election. This kind of delay is inherent in Indiana's statutory system for correcting errors (which parallels many other states' statutes).

In the case of the 8th District, once the ten day period for the correction of errors by the county clerks has expired, suit was immediately filed by a third party voter to force the correction of the error in Gibson County. I personally called and spoke with the Gibson County Clerk who flatly admitted that the original certificate he had sent to me was wrong.

Based on my own direct knowledge of the error and the pending court action to correct it, I believe it would have constituted misfeasance of office on my part had I issued an official certification knowing it was wrong.

Myth No. 3: "It is undisputed that the Indiana Secretary of State did not follow the law. He has almost admitted as much."

Fact: This is totally false. By my last count, there have been actions filed in some 22 state and federal courts on various aspects of the 1984 8th District election. In no instance has any court found that I acted in error, and no court ever directed me to rescind an action taken.

Since I was in compliance with the law, and both state and federal courts had judicially found that to be the case, it goes without saying that I have never "as much as admitted" to having "not followed the law." Nevertheless, for the record, my actions in regard to the 8th District election certification were in complete compliance with Indiana law and my own of office.

Myth No. 4: "The McIntyre certificate was based on an odd mixture of some returns from election night and other returns from partial recount."

Fact: This is not true. My office has a complete set a fifteen clerk's election certifications from the 8th District and a separate and complete set of fifteen recount certificates. The McIntyre certification was based on the clerk's certifications. No recount certification was used. These documents are readily available for inspection. Myth No. 5: "The federal judge in Indiana ruled that Mr. Simcox was in error in failing to certify Mr. McCloskey the winner by 72 votes as required by Indiana law. According to the federal court, McCloskey should have been awarded the election certificate."

Fact: On the one occasion my action was considered in federal court, the court refused to interfere. There was no ruling that I was in error. Mr. McCloskey had specifically sought an order seeking to have himself certified the winner based on the erroneous 72 vote lead, and the federal court refused to do so.

If I had failed to follow Indiana law, the federal court would certainly have ordered me to issue the certificate. Again, there was no such order.

If the federal court believed that Mr. McCloskey was entitled to his requested certificate based on the erroneous 72 vote lead, it has the power, jurisdiction, and opportunity to do do. It did not. In fact, the federal court indicated its belief that I would not be required to issue my certification until my receipt of the corrected Gibson County certification, which is exactly what I did.

V. CONCLUSION

The 1984 8th District election and the ensuing events have been among the most frustrating of my six years in office. I took the same course of action in the 8th District election that I have taken in several thousand other state and federal elections I have certified.

And now, somehow, those actions were improper because I didn't issue a certification based on vote totals that were known and admitted to have been incorrect.

The U.S. House of Representatives acted capriciously on January 3, when it refused to seat Richard McIntyre as the properly certified winner. The House took its precipitous action without any evidence of irregularity, because there was no such irregularity.

The proper course would have been for the House to have seated Mr. McIntyre, and then conducted its investigation. Instead, the House has disenfranchised half a million Indiana citizens for three months, and has never made the first official inquiry about the regularity of the certification.

No one disputes the right of the U.S. Congress to review the elections of its own members, but the course taken by the House in this matter ignores scores of precedents and presents a dangerous precedent for the future.

How big of a margin will a minority candidate for the House have to win by to be sure that Congress will seat him or her swearing-in day? If 34 is not enough, can 50 be sufficient? Where will the line be drawn for in the future?

Mr. McIntyre was the winner based on initial election returns and the official election returns. The failure to seat him may haunt the Congress for years to come. I hereby swear and affirm under the penalties of perjury that the foregoing testimony to the 8th District Task Force Subcommittee of the U.S. House Administration Committee is true and complete to the best of my knowledge.

EDWIN J. SIMCOX, Secretary of State, State of Indiana.

Before me the undersigned, a Notary Public for Marion County, State of Indiana, personally appeared Edwin J. Simcox and he being first duly sworn upon his oath, says that the facts alleged in the foregoing instrument are true and acknowledges his execution of said instrument this 4th day of April, 1985.

CARLA J. MCINTIRE, Notary Public, Resident of Marion County.

My Commission Expires: January 22, 1988.

TRI-STATE CHAPTER OF NATIONAL ORGANIZATION FOR WOMEN,

Mr. JOHN ANGELL,

c/o Representative Leon E. Panetta, Cannon HOB, Washington, DC.

Evansville, IN, March 29, 1985.

Dear Mr. AngELL: Thank you for the opportunity to submit evidence in the 8th District race problem. First, I wish to extend gratitude to the Task Force for their efforts in coming to Indiana and in holding hearings for citizen comment.

One of the questions in determining which ballots shall be counted concerns the absence of precinct officials initials or the presence of stray marks on some ballots. As a recent precinct official and longtime poll worker. I can elucidate this point. Due to a change in leadership of the local Republican party, there were many new Republican committeeman who, of course, appointed the precinct officials of their choice. Many of these were also inexperienced and lack knowledge of proper procedures. While training sessions were held, some did not avail themselves of the opportunity to learn the correct method. In addition, an active coalition of groups had registered many new voters. These were primarily low income and also lacked knowledge that ballots should be initialed. So you had both no initials at all and/or stray marks made inadvertently.

Picture, if you will, a populous blue collar ward where the voters generally have to vote between 6 a.m.-8 a.m. and from 4-6 p.m. They might work on assembly lines or other places where little opportunity exists to visit the polls at other times. This causes long lines at those hours. When precinct officials take time to initial ballots, those waiting in line complain that they might be deprived of their vote since either they will have to go to work or the polls will close. In an effort to ensure that as many as possible can vote, some poll workers inadvertently cut a few corners, not realizing the import of this. This is in contrast with predominantly white collar precincts where the voters tend to have more flexibility in voting times-they might be executives, self-employed, etc. So the pressure to vote people quickly is lacking, and yet their ballots in general then are not questioned. But can we fairly say that the vote of a wealthy citizen is more worthy than the vote of a lower income one? Finally, an analysis of challenges in Vanderburgh's 4th Ward Evansville precinct shows the following:

According to the last census Vanderburgh has 167,515 people of whom 154,335 are white (92%) and 11,934 are black (7%). Most 8th District blacks live in Vanderburgh's 4th Ward, particularly precincts 5, 6 and 7. The 4th Ward has 18,254, 62 percent white and 37 percent black. 5, 6 and 7 have 3,510 people, 13 percent white and 87 percent black.

In Vanderburgh, while all votes from 2 predominantly white precincts were rejected out of 52 precincts with a white majority, all votes from 2 precincts and virtually all from a third predominantly black precinct were rejected out of the 5 precincts or less which have a black majority.

The National Organization for Women deplores what seems to be overt racism. We in the Tri-State Chapter think that any candidate for office who would draw a salary from all taxpayers should not profit from resorting to such tactics.

Again, please accept our thanks for your help in seeing that the voters of the Eighth District get proper representation. If we can help you further, please feel free to call on us at any time. We are at your service.

Sincerely,

HARRIETT B. KIMMEL,
Coordinator.

RESOLVING BALLOT ISSUES

THURSDAY, APRIL 4, 1985

HOUSE OF REPRESENTATIVES,

TASK FORCE ON THE

INDIANA EIGHTH CONGRESSIONAL DISTRICT,
COMMITTEE ON HOUSE ADMINISTRATION,

Washington, DC.

The task force met, pursuant to notice, at 4:12 p.m., in room 301, Vanderburgh County Administration Building, Evansville, IN, Hon. Leon E. Panetta, presiding.

Present: Representatives Panetta, Clay, and Thomas.
Staff present: Ernie Mannino.

Also present: William H. Schweitzer, Esq., and Benjamin L. Ginsberg, Esq., Baker & Hostetler, 818 Connecticut Avenue, NW, Washington, DC; Karl Sandstrom, Esq., Deputy Counsel, Committee on House Administration; James Meissner, Assistant Regional Manager, U.S. General Accounting Office, Cincinnati Regional Office, Cincinnati, OH; and W. Jim Shumway, Recount Director, Task Force on Indiana Eighth Congressional District.

Mr. PANETTA. The meeting of the Task Force on the eighth district election is in order for purposes of a hearing on resolving ballot issues, actually discussing several matters: One, a discussion of the resolution of the ballots that have been segregated by the staff due principally to marks on the ballots; and a decision by the task force, then, as to whether those constitute distinguishing marks.

Second, a kind of recant of where we are at on the status of the recount by Mr. Shumway, and then a discussion of the process of reconciling discrepancies and when we will anticipate a report on that; and when we should schedule an additional Task Force hearing to resolve those issues.

So, first of all, let me just again state a large thank you to all of the staff, and to you, Mr. Shumway, to the GAO auditors, to the teams on both sides, and representatives for the candidates on all sides because every report we get is that it has been a very dedicated effort, and that everybody who is here has put in a lot of time and work and we deeply appreciate that because obviously there is a lot of anticipation in Washington to see this recount included, and for that reason I want to thank you all.

I want to thank you personally, and I think I want to thank you on behalf of the task force for what you are doing.

And with that, why do we not proceed to the ballots that have been segregated?

Mr. SCHWEITZER. Mr. Panetta, may I make one comment on that?

Mr. PANETTA. Sure, Mr. Schweitzer.

Mr. SCHWEITZER. That we had-Mr. Shumway and I talked earlier-on the agenda, you had Spencer, Warrick, Martin, and Orange Counties. There are two in Crawford that are going to be presented also.

Mr. PANETTA. In addition?

Mr. SCHWEITZER. Yes, sir.
Mr. PANETTA. All right.

OK. So, the first two are Crawford?

Mr. SHUMWAY. That is correct.

Mr. PANETTA. And let me suggest the approach that I would like to take, is, first of all, to ensure that the names are masked on the ballots, as we did last time; and please, no comments from any members of the staff as to the nature of those ballots in terms of who they are for or against.

Second, what I would like to do then is to indicate who they were segregated by, and ask if that team, that individual, or that staff member explain why they thought they should be segregated, and then, Mr. Shumway, I would appreciate your views, and then we can ask questions and decide.

Mr. SHUMWAY. OK, Mr. Chairman.

All of these ballots have been sealed, have been logged into our command center, and logged back out by myself today, for this purpose.

Spencer County, as you mentioned, is the first one. It is from Carter No. 2 Precinct, and this particular ballot, not having been counted, obviously, of that particular precinct, according to my notes, would be in balance with this ballot.

So, it is not a ballot of any extraneous position or anything. It is merely one that has a distinguishing mark on it.

If I may take just a moment so that I can mask it since I have not removed the ballot ahead of time.

Mr. PANETTA [continuing]. While you are preparing the ballot, the gentleman from California would like to say some comments as well.

Mr. THOMAS. I did want to add my thanks as well-in the opening remarks for all of the staffs and the GAO auditors under youMr. Shumway, for the effort that you have put forth. It is always frustrating when you set plans, and then given the pressures on you cannot meet them, but the timetable that you are currently meeting is, as you have indicated earlier, one with which you can have some respect with the results. And that is primarily what we want.

I also wanted to say briefly that the distinguishing marks section of the rules adopted by the task force probably come closer to Indiana law than almost any other portion of the rules that we are conducting this task force recount under.

So, it is a pleasure to be here functioning under some degree of Indiana law.

Mr. PANETTA. Mr. Clay?