Short title; findings

(a)

Short title

This Act may be cited as the

Confirmation Of Congressional Observer Access Act of 2023

or the

COCOA Act of 2023

. (b)

Findings relating to congressional election observers

Congress finds the following: (1)Article 1, section 5, clause 1 of the Constitution grants Congress the authority to be the Judge of the Elections, Returns and Qualifications of its own Members. (2)The House of Representatives serves as the final arbiter over any contest to the seating of any putative Member-elect. (3)Congress has exercised this authority—and responsibility—since our Nation’s very beginning, from the First Congress through the One Hundred Eighteenth Congress. Over our history, election contests have remained a normal and regular part of the biennial process for electing, recognizing, and seating new Members. Although Congress has opted to revise the statutory framework by which it considers election contests, consideration of such contests has been a regular and recurring part of Congress’ constitutional prerogatives and work. For example, across our Nation’s history, more than approximately 610 elections have been contested in the House—an average of more than 5 per Congress. Indeed, even discounting the Reconstruction period and its surge in election contests, there have been 110 contested election cases considered in the House since 1933—an average of more than 2 contests per Congress. (4)These election contest procedures are contained in the precedents of each House of Congress. Further, for the House of Representatives the procedures exist under the Federal Contested Elections Act. (5)For decades, the House of Representatives has appointed its staff to watch the administration of congressional elections in the States and territories. Critically, congressional observers serve to gather real-time information and data for the House in anticipation of an election contest being filed.

Access for congressional election observers

(a)

Access required

Title III of the Help America Vote Act of 2002 (52 U.S.C. 21081 et seq.) is amended— (1)by redesignating section 304 and 305 as sections 305 and 306; and (2)by inserting after section 303 the following new section:

304.

Access for congressional election observers

(a)

Finding of constitutional authority

Congress finds that, regardless of legislative action, it has the authority to send congressional election observers to observe polling locations, any location where processing, scanning, tabulating, canvassing, recounting, auditing, or certifying voting results is occurring, or any other part of the process associated with elections for Federal office under the authorities granted under article 1, section 5, clause 1 and article 1, section 4, clause 1 of the Constitution of the United States. Procedures described herein do not establish any new authorities or procedures with respect to Congress’ constitutional authority to observe congressional elections but are provided simply to permit a convenient statutory reference for existing congressional authority and activity. (b)

Requiring States To provide access for observers

(1)

Requirement

A State shall provide each individual who is acting as a designated congressional election observer for an election for Federal office with full access to clearly observe all elements of election administration procedures, including, but not limited to, access to any area in which a ballot is cast, processed, scanned, tabulated, canvassed, recounted, audited, or certified, including during pre- and post-election procedures. (2)

Restrictions on activities of observers

No designated congressional election observer may handle a ballot or election equipment (whether voting or nonvoting or whether tabulating or nontabulating), advocate for any position or candidate, take any action to reduce ballot secrecy or voter privacy, take any action to interfere with the ability of a voter to cast a ballot or an election administrator to carry the administrator’s duties, or otherwise interfere with the election administration process. (3)

Rule of construction

Nothing in this section shall prohibit a designated congressional election observer from asking questions of an election administrator, election official, or election worker, or any other State or local official. (c)

Conduct of observers

(1)

Removal

(A)

Authorization removal by election official

If a State or local election official has a reasonable basis to believe that a designated congressional election observer has engaged in or imminently will engage in intimidation or deceptive practices prohibited by Federal law, or in the disruption of voting, processing, scanning, tabulating, canvassing, or recounting of ballots, or the certification of results, a State or local election official may remove that observer from the area involved. (B)

Notice to committee

If a designated congressional election observer is removed from an area under subparagraph (A), the election official shall— (i)inform the chair and ranking minority member of the Committee on House Administration of the House of Representatives; and (ii)provide written notice detailing the reason or reasons the designated congressional election observer was removed. (2)

Rule of construction

For purposes of this subsection, the mere presence of a designated congressional election observer during an observation of election administration procedures, without any additional indicia supporting a reasonable basis for removal, is not a sufficient reason for removal under subparagraph (A). (3)

Right to replace observer

If a designated congressional election observer is properly removed under subparagraph (A), the chair or ranking minority member of the Committee on House Administration of the House of Representatives, as appropriate, may send another designated congressional election observer as a replacement for the remaining duration of the observation of election administration procedures. (4)

Clarification regarding applicability of Code of Official Conduct

It is the sense of Congress that, because the Code of Official Conduct for the House of Representatives (rule XXIII of the Rules of the House of Representatives) requires all employees of the House to behave at all times in a manner that reflects creditably on the House, an employee of the House who serves as a designated congressional election observer is subject to the Code of Official Conduct in the employee’s role as such an observer. (d)

Designated congressional election observer described

In this section, a designated congressional election observer is a House employee (as contemplated by the Rules of the House of Representatives) who is designated in writing by the chair or ranking minority member of the Committee on House Administration of the House of Representatives, or the successor committee, to gather information with respect to an election, including in the event that the election is contested in the House of Representatives and for other purposes permitted by article 1, section 5, clause 1 and article 1, section 4, clause 1 of the Constitution of the United States. (e)

State defined

In this section State means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

(b)

Conforming amendment relating to enforcement

Section 401 of such Act (52 U.S.C. 21111) is amended by striking and 303 and inserting 303, and 304. (c)

Clerical amendment

The table of contents of such Act is amended— (1)by redesignating the items relating to sections 304 and 305 as relating to sections 305 and 306; and (2)by inserting after the item relating to section 303 the following:

Sec. 304. Confirming access for congressional election observers.