[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
MARK UP OF H.R. 3295, THE HELP AMERICA VOTE ACT OF 2001
=======================================================================
MARK UP
before the
COMMITTEE ON HOUSE ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, NOVEMBER 15, 2001
__________
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COMMITTEE ON HOUSE ADMINISTRATION
BOB NEY, Ohio, Chairman
VERNON J. EHLERS, Michigan STENY H. HOYER, Maryland,
JOHN L. MICA, Florida Ranking Minority Member
JOHN LINDER, Georgia CHAKA FATTAH, Pennsylvania
JOHN T. DOOLITTLE, California JIM DAVIS, Florida
THOMAS M. REYNOLDS, New York
Professional Staff
Neil Volz, Staff Director
Bob Bean, Minority Staff Director
(ii)
MARKUP ON H.R. 3295, THE HELP AMERICA VOTE ACT OF 2001
----------
THURSDAY, NOVEMBER 15, 2001
House of Representatives,
Committee on House Administration,
Washington, DC.
The committee met, pursuant to call, at 11:10 a.m., in room
1310, Longworth House Office Building, Hon. Robert W. Ney
(chairman of the committee) presiding.
Present: Representatives Ney, Ehlers, Linder, Doolittle,
Reynolds, Hoyer, Fattah and Davis.
Staff Present: Jeff Janas, Professional Staff Member; Paul
Vinovich, Counsel; Chet Kalis, Professional Staff Member; Roman
Buhler, Counsel; Sara Salupo, Staff Assistant; Bob Bean,
Minority Staff Director; Keith Abouchar, Minority Professional
Staff Member; and Matt Pinkus, Minority Professional Staff
Member.
The Chairman. The committee is now in order for the purpose
of consideration of H.R. 3295, the Help America Vote Act of
2001. I just wanted to make a statement that today's markup is
the culmination of a long series of hearings, discussions and
negotiations. In crafting this bipartisan election reform bill,
we heard from and consulted with groups from across the country
that represent the interests of voters, elections officials,
State and local governments and others who care about this
issue. From the outset of this process, our goal has been to
craft legislation that could be supported by Members from both
sides of the aisle, and with the introduction of the bill, I
think it is very evident if you look at the sponsor and
cosponsor list that they are from both sides of the aisle and
from different political spectrums within both parties.
Improving our country's election system should not be a
partisan issue. Republicans and democrats nationwide and here
in this Congress agree on the necessity of ensuring that all
citizens who wish to vote can and that their votes are counted
accurately. I believe this bill will advance us towards the
goal.
Members have been provided with a copy of the bill, but
before we begin, I would like to just quickly go through some
parts. The first title of the bill, title I, is the punch card
replacement program, the hanging chads and all those issues.
This title authorizes $400 million to allow those jurisdictions
that used punch card voting systems in the November 2000
election to get rid of them. It is obvious that we need to get
rid of these antiquated technologies and replace them with
machines that voters can have confidence in, and this title
authorizes funds to make that happen.
I will make it clear. Some jurisdictions have said they may
not do this, and that is fine. We are not telling them they
have to do it, but if a future election has a tie and they have
a hanging chad, don't call me to try to see how that works out
for them. But, again, if they want to replace them, we will be
there. If they don't want to, that is going to be their option.
Second title, title II, creates the new Election Assistance
Commission. The new Commission will assume the functions of the
Office of Election Administration, currently under the Federal
Election Commission. The new EAC will serve as a national
clearinghouse for the compiling of information and review of
procedures affecting administration of Federal elections. The
EAC will also be charged with developing new voluntary election
management practice standards. It will distribute the election
fund payments, research and development grants and pilot
programs authorized by this bill.
I will point out that the name that we did choose, by the
way, for this Commission is not an accident. The purpose of
this Commission is to assist State and local governments with
their election administration problems, basically taking the
attitude we are the government, we are here to help. Its
purpose is not to dictate solutions or hand down bureaucratic
mandates. The Commission has no rulemaking authority. Its
commissioners serve part-time. Of the four commissioners, no
more than two can be of the same party, so we guarantee
bipartisanship.
Additionally, it must consult with and consider the
recommendations of the Advisory Board and the Standards Board
established by this bill. These boards will consist of election
officials from around the country as well as other interested
groups with interest in or expertise in election issues. These
boards will have a voice on this Commission and that voice will
be heard.
I just want to say something about this bill. It is, I
think, embarking on a unique area. Those who were concerned
about creating a Federal agency that in fact was going to
promulgate rules without the vote of Congress don't have to
have a fear after this Commission is constituted.
The ranking member Mr. Hoyer came through with the Advisory
Board idea, which was just a tremendous idea. It includes a lot
of groups from around the country to have their voice heard. We
had the standards part of it, which will be approximately 110
people from across the country. They will reach consensus. It
forces a working group together, and we have a Commission. So
it, I think, is one of the more unique ideas that was given to
us, and I want to thank Mr. Hoyer for coming up with the
Advisory Board.
The title also authorizes $2.25 billion for the election
fund payments to the States. The election fund payments will be
used for a variety of things, from purchasing new equipment to
updating registration systems, to assuring access for those
with physical disabilities to the polls, increasing poll worker
education and training, sending sample ballots, et cetera. The
fund is designated to allow a State to determine its greatest
needs and devote the resources to those needs.
Along with these funds come funding conditions. States that
take payments must certify, for example, that they have
provided one dollar to match every three dollars provided by
the Federal Government, a 25 percent match.
They have established a statewide benchmark for voting
system performance. They have adopted the voluntary election
standards developed by the new Election Assistance Commission
or developed their own standards. They also have in each
precinct or polling place a voting system in place which is
fully accessible to people with disabilities. These funding
conditions will ensure that the Federal dollars are spent
appropriately and that the EAC will monitor compliance with
these conditions.
Titles III and IV of this bill help create the Help America
Vote Program. This program is designed to get the country's
young people involved in our democratic process through
volunteer services, nonpartisan poll workers and assistance.
Ranking member Mr. Hoyer proposed this idea. We have a
college program and also a high school program. We all talk
across the country and we all firmly believe we want young
people involved in this process. Then let us get them to the
polls, have them be poll workers, see how the process works,
and it will give them, I think, a renewed spirit and energy to
become future voters and to take that back to their schools to
promote voting. I think this is a great program. The Help
America Vote Program will be administered by the EAC. The high
school program will be set up independently by Federal charter.
Both programs will be administered in a nonpartisan manner.
Titlte V is the minimum standards section of this bill. The
minimum standards approach I believe is the spirit of this
bill. Some people fear that having funding conditions wasn't
adequate, because voters who maybe lived in States who did not
take funds would not be protected. Others opposed intrusive
Federal mandates that become burdensome and inefficient, and
that was a huge argument debated across this country.
The minimum standards we include in this bill strike the
appropriate middle ground. They guarantee certain protections
to all the voters of the country without imposing an intrusive
Federally designed system.
There are seven minimum standards. Number one, the State
will implement a statewide registration system that is
networked to every jurisdiction in the State.
Two, the State has a system of file maintenance which
ensures that the voting rolls are accurate and updated
regularly.
Three, the State permits in-precinct provisional voting by
any voter who claims to be a qualified voter to vote.
Four, the State has adopted uniform standards to define
what constitutes a vote on the different types of voting
equipment in use in the State.
Five, the State has implemented safeguards to ensure that
military service personnel and citizens living overseas have
the opportunity to vote and have their vote counted.
Six, the State requires that new voting systems provide a
practical and effective means for voters with physical
disabilities to cast a secret ballot.
Number seven, States that have technology that allows
voters to check for errors must ensure that they are able to do
so under conditions which assure privacy, and States replacing
all machines within their jurisdictions must do so with
machines that give voters the opportunity to correct errors
before the ballot is cast.
The EAC, the Commission, will monitor compliance with these
minimum standards and can make referrals to the Justice
Department in cases of noncompliance. I think that gives a
certainty of feeling that these will be standards that will
work and will have some teeth.
Title VI will help assure the voting rights of our service
personnel and overseas citizens. It includes a number of
provisions that will make it easier for our service personnel
to obtain ballots and transmit them in a timely fashion.
Additionally, we will require the Department of Defense to make
sure there are an adequate number of voting assistance officers
assigned and make sure the ballots are properly postmarked so
they can't be challenged.
Finally, Title VII, VIII, and IX would allow official
election mail to be sent at one-half of the regular first class
rate, transfer the FEC's Office of Election Administration to
the new EAC created in this bill, protect the privacy rights of
voters in jurisdictions that have second-chance voting, and
clarify the National Voter Registration Act procedures for
removal of ineligible registrants from the poll.
In conclusion, just let me say that this bill is a
culmination of a lot of hard work, and before I turn it over to
the ranking member, I also want to take a moment to thank a lot
of people who made this possible. Bob Bean and Keith Abouchar
of the minority staff. I obviously want to recognize our
majority staff that are also sitting here that participated.
Chet Kalis, Roman Buhler, Paul Vinovich, Maria Robinson, Pat
Leahy. Who am I missing? I am going to have to give them a pay
raise to compensate for not saying their name here today.
I also want to acknowledge Congressman Roy Blunt, who was
very, very helpful. His administrative assistant, Floyd Gilzow,
who was very helpful. And let me also just say that we met with
the Speaker of the House, Mr. Hoyer and I did. We also met with
Leader Gephardt. I was very encouraged by the attitude of both
of the leaders, and let me just say before I turn it over to
Mr. Hoyer that things don't happen in a vacuum. We have been
able to get to this point. I want to publicly recognize the
work of Steny Hoyer and also the work of the members of this
committee. We debated issues for quite a few months. We have
debated issues for quite a few hours, quite a few days, quite a
few weeks. We debated issues when they were in this building.
We debated issues when we were strung out at GAO and also
Rayburn. No matter what was happening, we were continuing to
discuss the issues, outreaching, talking to people on both
sides of the aisle.
Some will say this maybe isn't a perfect bill, but this is,
I think, the way Congress should do its business, and there is
still a process yet to go and I know that. But I believe that
we worked together to put aside the politics, to come up with
some ideas that I think is a good concrete plan that helps
America vote. So I want to thank you publicly for all of your
concern on this issue and due diligence. Thank you.
Mr. Hoyer. Thank you very much, Mr. Chairman, and I
certainly want to return the favor. We would not be here if it
weren't for Chairman Ney. There is no doubt that he has
demonstrated a commitment to working in a bipartisan fashion to
come up with a bill that in my opinion is more than most would
have hoped for, and I say that across the board in January or
February or March or April when local groups were very
concerned and others were very concerned about legislation. So
I think Chairman Ney, his remarks that this is not a perfect
bill, properly imply--undoubtedly apply to every bill that has
ever been considered in the Congress of the United States.
Having said that, I think this is a good bill. It is worthy of
support and will move us forward.
That does not mean that I think it cannot be strengthened.
I think it probably can be, but it does mean that I think it is
a very worthwhile piece of legislation, and I thank not only
Congressman Ney but all the members of this committee who have
worked within and with me in a positive fashion, and I say that
to both sides of the aisle on this committee. All have made
various and substantial contributions.
I also want to thank John Conyers, the ranking Democrat on
the Judiciary Committee, and Maxine Waters, the Chair of the
Democrat Caucus Special Committee on Election Reform. Mr.
Conyers does not believe this bill goes far enough. I
understand his position. He has been critical of some of the
things that we don't do, but I think and I hope that most
people will focus on the things this bill does do, because they
are very substantial. Chairman Ney has outlined them and I am
going to reference some of those issues myself.
In addition, on our side of the aisle, we have been very
attuned to trying to give very personal attention to the report
issued by the Waters committee, and in my opinion, we have
included most, not all, but most of the issues that were raised
in that very excellent report.
As you will see, the legislation that we will mark up today
incorporates many of the recommendations made not only by the
Waters committee but by the Ford-Carter Commission, by the MIT-
CalTech group, and I am not going to mention them all, but very
substantive groups that have looked at this. As Chairman Ney
has indicated, we have also worked with people who have the
responsibility on the local level in States and counties,
cities, precincts, wards, to implement whatever is adopted.
One year ago this month our Nation was in the throes of a
political nightmare that would drag on for 5 excruciating
weeks. None of us want to see that replayed. I recall that 1
year ago today the headline that dominated page one of the
Washington Post was this, and I quote, ``Bush's Florida lead
swings to 300. Justification required on recounts. Pictures
still muddled and legal tussles.''
This bill is not to cast dispersions on any State, any
candidate, any party. In point of fact, as we went on, we saw
that no State was exempt from having problems with technology
and with process. We hope that this bill will be a very
definite contribution to fixing that.
Uncertainty reigned in our democracy. Public confidence in
our election system was shaken. The United States of America,
the most technologically advanced Nation in the world, had not
fulfilled its most basic election duty, the duty to count every
citizen's vote, count it accurately and be able to report it
quickly. In all the votes an estimated 2 million Americans went
uncounted and, as was observed by the CalTech-MIT study, there
were probably another 3 to 4 million votes that were not cast
because of problems with registration. So this was not alone a
problem of Election Day concerns, but of registration concerns
as well.
That situation was not and is not acceptable in our
democracy now, after a year's examination and investigation of
our election system by Congressional committee. I want to thank
Bob Ney, in which Bob Ney in the House, who had hearings before
anybody else did and right after the negotiations between
Democrats and Republicans broke down about forming a bipartisan
task force, when they no longer were viable, Chairman Ney came
to me, and I came to him and we talked, and he said, we are
going to have hearings right now. We had the earliest hearings.
We had extensive hearings. They were broad-based. We included
all interested parties, and those hearings were very, very
useful in moving this process along.
Very frankly, I had introduced a bill early on. It was a
bill that had made election reform conditioned upon the receipt
of money. That became a problem, which I will discuss a little
further in just a second. But the time for talk has now, in my
opinion, ended. It is time for us to act.
Thus today, I am pleased to join Chairman Ney in strongly
supporting the Help America Vote Act of 2001. This bipartisan
legislation is not a magic elixir for the problems that plagued
us last November. No legislation could be. But it prescribes
the right medicine for our ailing election system, Federal
assistance to the States and minimum election standards that
are not optional, that are not conditioned upon the receipt of
money. I think that is a critical addition to this bill which
came after extensive discussions between myself and Chairman
Conyers, Ranking Member Conyers, and Chairman Waters. This bill
will significantly improve the integrity of our election
process, improve voter participation, and I think go a long way
towards restoring public confidence.
The Help America Vote Act authorizes $2.65 billion for
Federal election reform over 3 years. That is more money per
year than any other bill that has been introduced, and that is
a direct accomplishment, frankly, of Chairman Ney. He was
tenacious on this. He felt that that sum at least was necessary
to accomplish our objective, and I thank him for his leadership
on that issue.
In addition, Speaker Hastert has represented to both of us
that he is going to support supplemental appropriations for
fiscal year 2002, up to 600--not up to--650 million, 400
million for the punch card buyout, which everybody recommended
ought to be accomplished, and 250 million to accomplish the
objectives set forth in the legislation for use of the general
funds out of the election fund.
It allocates $2.25 billion over 3 years for that general
fund to help States establish and maintain accurate lists of
eligible voters, obviously an issue that was confronted in
2000. Improve equipment, clearly necessary. Recruit and train
poll workers, a real problem all over the country. Improve
access for disabled voters, in my opinion, a very important
objective. And educate voters about their rights.
Furthermore, the Help America Vote Act establishes minimum
standards for State election systems that will be enforced, and
the chairman has said this. There is no disagreement on this by
the Department of Justice. Under this bill, the States must
adopt, not advisory, not optional, they must adopt a statewide
voter registration system linked to local jurisdictions. Ford-
Carter, Waters, other reports said that was critical to do. In-
precinct provisional voting, so that Americans do not go to a
polling place and because of mechanical registration problems
are turned away. They will be able to vote there with a
provisional ballot in that precinct, a critical important step
forward, in my opinion. A system for maintaining the accuracy
of voter registration records, a language which we believe is--
and we have agreed between the parties is consistent with and
in no way changes or undermines the motor-voter legislation,
the National Voter Legislation Act.
Uniform standards defining what constitutes a vote on the
different types of voting equipment certified for use, that
obviously is an issue raised by Bush v. Gore. It is safeguards
ensuring that absent uniformed and overseas voters have their
votes counted. We found, to our shock, at least to mine, that
there were many jurisdictions that received absentee ballots
from overseas, civilian and military, that did not count them
unless counting them would make a difference in the outcome.
There is no American who wants to take the trouble to vote who
believes their vote is not counted simply because the other
side got more votes than their vote would have made a
difference.
And assuring voters who make errors will be given
opportunity to correct their ballots. And practical and
effective means for voters with disabilities to cast secret
ballots on new voting equipment. I intend to, as the chairman
knows, because we have not gone as far as I thought we could
have gone, offer an amendment to that section to be more
specific, and I will offer that at the appropriate time, Mr.
Chairman.
Let me stress, these minimum standards are not
discretionary, nor are they contingent on receipt of election
payments. States shall enact these basic minimum protections,
and they shall be enforced. The chairman has made that very
clear in his opening statement.
I especially want to thank advocates for the civil rights
of disabilities communities for their help in crafting this
bill. I do not attribute this bill to them, but they have been
helpful and have been in communication with our staffs through
the last 8, 9 months in getting to where we are. I understand
that they are concerned that this bill does not go far enough.
I made the point yesterday, I will make it today, and I
will make it in the days to come, that this bill will go to
conference. There will be other recommendations made, assuming
the Senate passes a bill, and we will certainly look at ways
and means to ensure the objectives of making sure that every
American is facilitated in their voting, that every American's
vote counts and is counted accurately.
I appreciate and understand the views of those who are
concerned about this bill. I think Mr. Fattah may have
mentioned it, because we discussed it yesterday. We are
committed to making sure that this bill is as good as we can
get it. However, while this legislation is not perfect, it
offers this distinct advantage. It has a realistic chance of
passing this House and becoming law in time to avert another
election nightmare 1 year from now.
As the end of this session of Congress draws near, time is
of the essence. The train has sounded its whistle, set to pull
away from the station, and election reform, in my opinion, must
be on board.
Election reform is a down payment on the right that defines
us, the basic right of every citizen to cast their vote and
assist America in making its decisions.
I urge my colleagues to join us in making this crucial
investment. I want to also join the chairman. He mentioned Bob
Bean and Keith Abouchar. I also want to mention Beth Stein, who
is sitting out in the audience. Beth Stein was on the House
Administration staff at the beginning of this year. She is now
with Senator Cantwell, the newly elected Senator from
Washington State, but she was very important in working on the
initial bill that we introduced, which was a good bill at the
time it was introduced, and this is a stronger, more
comprehensive version of a compromise bill. I also want to
thank Neil Volz, the Staff Director of the House Administration
Committee, who has done an extraordinary job of--where is Neil?
The Chairman. He is back there.
Mr. Hoyer. I want to thank you, Neil, for the work that you
have done in keeping us all targeted and keeping people happy.
I want to thank Chet Kalis, who came in and did an
extraordinary job. Chet, thank you for the hours you put in and
the good humor that you exercised, even when I came back and
said, no, we have got to make it stronger and you pulled out
your hair because you thought that it had all been done, and I
thank you for that.
Paul Vinovich--where is Paul? Is Paul in the room? Oh,
there he is. Paul, an outstanding lawyer, who was very involved
in putting on paper our ideas, and if there are mistakes here,
it is all your fault, Paul, none of ours. Of course Bob Ney and
I have done it right. But Paul has done a great job for us.
Maria Robinson, I also want to thank Maria Robinson. I don't
know if Maria is back there. And Pat Leahy as well. I also
would be remiss if I did not thank, not necessarily profusely,
but thank my friend Roman Buhler, who----
The Chairman. Can we make a note at 25 till 12:00, Mr.
Hoyer said something nice about Roman.
Mr. Hoyer. Those of you in the audience----
The Chairman. That is inside----
Mr. Hoyer. Mr. Buhler is one of the longest serving staff
members of the House Administration Committee, and has,
therefore, one of the longest memories of what has been done
and hasn't been done. There are grievances that exist, but he
and I have had a checkered career, but I want him to know that
I thought, notwithstanding the fact that we disagreed on many
items, that he did make a positive contribution to our final
product, and I thank him for his work on this.
Mr. Chairman, this has been a positive effort. We have much
that is left to be done, but I think we can get it done.
The Chairman. Thank you. Thank you very much, and we will
move on to--and I forgot to mention--I mentioned all our staff
except our Staff Director, so I am glad you threw that in
there, Neil Volz.
Mr. Hoyer. I am trying to take care of him, you know.
The Chairman. And one enlightening thing that I have
learned from Mr. Hoyer and Mr. Buhler, I learned the history of
the House when I wasn't even here, so it was interesting.
Mr. Ehlers.
Mr. Ehlers. Oh, but, you know, when Wayne Hayes chaired
this committee.
The Chairman. That is right.
Mr. Ehlers. Mr. Chairman, I congratulate you and Mr. Hoyer
on this bill. I think it has gone a long way toward solving our
election problems. I also want to thank you for including a
bill that I had written separately, which passed the Science
Committee, H.R. 2275, which dealt with a very important aspect
of that, and let me just mention to those who are not aware of
it, the role that this will play. I think it is going to be the
most important factor in this bill in terms of the future
development of voting equipment.
Some years ago, local election officials began moving
toward computerized voting equipment. Before then, it had
simply been the paper ballot and the big iron monsters where
you pulled the little levers down, and everybody viewed the
computerization as a great step forward, but in many cases
local election officials did not have the technical expertise
to judge the quality of the equipment, the accuracy, the
security, the integrity or the ability to test that equipment.
At the same time, we have a Federal agency which is
specifically devoted to setting standards and qualifications
for the entire Nation, and that is the National Institute of
Standards of Technology that has been in operation for much
more than a century. It does an outstanding job for all of
America, its industry and its commerce. So it was natural to
ask them to become involved in helping to set standards for
voting equipment.
The portions of the bill that deals with that gives that
responsibility to the National Institute of Standards. And the
reason this is so important, much of the issues in the disputed
election in Florida last year rose from the lack of quality and
maintenance of equipment and using proper procedures with all
the computerized equipment. We hoped that as a result of this
bill, standards will be developed, not only for the quality of
the equipment, but also the way in which it functions and the
way in which it is maintained.
There is another factor which is introduced in this
section, which has not, to my knowledge, been ever discussed or
brought forward in any major way, and that is the security of
the voting system. We worry a great deal about locking up the
ballots, sealing the ballot boxes and so forth, but we have not
paid attention to the fact that almost any college freshman
with a knowledge of computers could easily program the computer
to read the results differently than the voters intended, and
to therefore change an entire election just by changing the
software in some minor way. So the National Institute of
Standards and Technology, which is also expert in information
technology, will be charged with the responsibility of
developing safeguards so that computer security is
strengthened. And with all of that work, I am convinced that in
the future, from the technical standpoint, we can almost
guarantee a total quality, accuracy, security and integrity of
our voting results, and that is extremely important, and I
appreciate the willingness of the other persons writing the
bill to include that in it.
Thank you.
Mr. Hoyer. Mr. Chairman, if I can, I want to congratulate
Mr. Ehlers. Mr. Ehlers I think is one of the experts in the
House on technology, scientific background, and has been very
helpful in modernizing the House's own technology. I think this
was an extraordinarily useful and very important addition to
the bill.
Mr. Ehlers. Thank you.
The Chairman. I do appreciate Mr. Ehlers' work, and Mr.
Doolittle offered a lot on the list maintenance. Mr. Reynolds
has an issue yet to help with the military, and I know members
of both sides of the aisle have added their ideas and we
appreciate that.
Mr. Hoyer. Mr. Chairman, you were going to introduce Mr.
Fattah and Mr. Davis I know now. I did not mention them, but
both of them have been very, very helpful in the development of
this bill from the--starting 9 months ago, 10 months ago till
today, and I thank them. Without them we would not have gotten
to this end. They both have been very helpful, and I want to
thank them for that.
The Chairman. I want to recognize Mr. Fattah, and thank
you.
Mr. Fattah. And thank you, Mr. Chairman. I will try to be
brief and concise, but I need to say a few things. One is I
started my public career, if you will, sitting on a panel back
home in Philadelphia in 1979, reviewing an election along with
the district attorney and a number of other people from both
parties. There had been a massive breakdown of voter machines
that had taken place on Election Day. In that election, the
primary of 1979, in which the first serious African American
candidate for mayor had run, and it just so happened about 90
percent of these machines broke down in the wards in the
African American community and he lost in a close race, and
there was a lot of concern about the process. And when we
finished that study, we determined that we needed to upgrade
the machinery, and that we needed to do a better job in terms
of locating polling places. It seemed that the more difficult
and out of the way polling places for voters to find happened
to be in the community most populated by African Americans. A
whole host of other reforms, and I am happy to say, you know, a
few decades later, we had just purchased these new machines in
Philadelphia and spent a few hundred million dollars.
The problem is between 1979 and now it took that long to
get to where we are. I am hopeful that as this legislation
moves forward, and the other pieces that are moving through the
process, the Conyers bill and the Dodd bill, and that we get to
some conclusion around here collectively about election reform.
It won't take us decades to actually implement the reforms and
that there will be some more immediate relief, because I think
that we see now that our Nation, unfortunately, having gone
through what we went through in the last presidential election,
you know, really lost the ability to really shine our democracy
in such a way around the world as some model for others to
follow if we can't count votes of law-abiding citizens who come
to the polling place. And we had just this week a rash of
stories about how not only a lot of votes were not counted
correctly, but how unfortunately, again, just like the
Philadelphia story of 1979, somehow it wasn't evenly dispersed,
this inability to get votes counted right. It seemed to be
aggregated among racial minority groups, particularly African
Americans, who for some reason or another, their votes in a
larger proportion were not counted or those ballots were
spoiled, and I think that raises a lot of concerns--and
should--among us as policymakers and among the general public.
So even though I also would like to thank the chairman, I
would like to thank the ranking member and the staff, I really
want to thank the public for being patient as we attempt to
perfect this democracy, and for African American voters in this
country, it has always been the Federal Government that has
really stood to protect their right to vote, from the Voting
Rights Act and due to interventions against the poll tax and
the literacy test and a whole range of maneuvers at the local
governmental level that has sought to deprive people of the
right to vote.
So I am hopeful that the Ney-Hoyer bill will be a part of
that continuum of efforts by the Federal Government to ensure
that people's rights will be protected. There is obviously
items in the bill or not yet in the bill that I would like to
see. I think we can do more to strengthen--I think we can do a
lot more in terms of the disability communities, of concerns
about access to polls and their ability to vote and have their
votes protected. And I think there are issues related to the
motor-voter implementation and the purge issue, even though I
think we are probably a lot closer on some of those issues than
we would suspect.
But I think that we have to have a vehicle in order to get
to an end product, and this is a vehicle. It is a contribution.
And I note that our colleagues in the Senate are working their
will. And I think that through it all, the more that we learn
about this process, the more we will understand that this
country's ability to face crises, like the ones we are facing
now, is dependent upon the election of our leaders in ways in
which we can have confidence that they have earned the right to
lead and that there be no doubt about that. And I think that it
would be helpful to us as a Nation never to ever again allow us
to be in a situation we were in the last presidential election,
and I think this bill makes a contribution in that regard.
Thank you.
The Chairman. I want to thank the gentleman for his
thoughtful and sincere comments.
Mr. Doolittle.
Mr. Doolittle. Mr. Chairman, I think if we can ask one of
our counsel to answer a question I have about a provision of
the bill. By the way, I think it is a fine bill. I commend you
and our ranking member and Mr. Blunt for putting together
something I think we can all support. But the question I have
specifically is on page 79. I understand beginning at line 14--
and I understand everything until we get to the phrase, which
says, ``except that no registrant may be removed solely by
reason of the failure to vote.'' and that seems to me to kind
of muddy the water to what it said prior to that. So could I
just ask what the effect of that is?
The Chairman. Counsel is telling me you can't be removed
simply because you haven't voted. You have to have not voted
and not responded to a notice.
Mr. Doolittle. Well, my question is--I mean, that is very
clearly set forth as the requirement, and I think this somehow
impugns what has gone before. I would like to urge you to take
that phrase out, because in the preceding paragraph, it makes
very clear that you cannot remove someone unless they have not
voted for two or more consecutive general elections for a
Federal office and who have not responded to a notice. And I
just think to have that extra phrase in there is frankly
unnecessary and possibly causes problems.
The Chairman. And I wasn't here for motor-voter, but as I
understand that law, it doesn't take you off anyway, the
original motor-voter, for failure to vote. It doesn't.
Mr. Hoyer. John, if I might respond, I think I understand
what you are saying. If you read this two together, they both
mean that you can't remove somebody for not voting solely. That
is what the----
Mr. Fattah. The gentleman suggested somebody that should be
removed from the rolls?
Mr. Hoyer. That is what the National Voter Registration Act
says, and therefore from your perspective if that causes you
some concern, it doesn't add anything or detract anything, but
from our standpoint it makes it clear that is the intent. That
is what the current law is and we just wanted to indicate so we
don't create a controversy outside this bill that frankly we
don't need. We have got enough controversy as it is.
Mr. Doolittle. Well, I think I understand what the intent
is, and I support the intent. I just think it is confusing. So
maybe as we roll along, we can further evaluate what----
The Chairman. I think what we can do is to take a look at--
and this bill is a thorough bill and that is why it tends to be
a complicated bill. When we looked over these sections, you
know, time after time after time again, we also had notified
Justice to have a look, counsel, everybody has taken a look at
it but----
Mr. Doolittle. I guess, Mr. Chairman, my feeling is it lays
out very clearly how someone is going to be removed and it
stipulates, you know, you have to not vote in at least two
Federal elections and you have to have not responded to a
notice. But then when they go on the say, ``except that no
registrant may be removed solely by reason of the failure to
vote,'' well, that is not an exception, because the exception
is contained in what goes before.
The Chairman. But, again, as this process continues on, we
will be glad to sit with all the parties affected and also with
all the attorneys we need to look at this, to clarify what
position we have on this.
Mr. Ehlers.
Mr. Ehlers. Just a short comment. That means if you die,
you can stay on the voter rolls.
The Chairman. I don't believe so. But any other opening
statements?
Mr. Davis. Mr. Chairman, one of the more articulate
spokespeople on this bill was the Ohio Secretary of State, and
in representing your district and your State and the country, I
think we have really been faithful to what he suggested we do
and how quickly and how vigorously we do it. So I salute you
and Mr. Hoyer for having in mind a single clear goal at the
beginning that really helped us escape any partisan trappings
that could have easily submerged this bill.
Everyone in this committee knows by now that what happened
in Florida could have happened elsewhere and did to a certain
extent, and I believe we are all resolved that that not happen
again. As the most recent media reports make painfully clear
once again, the margin of error exceeded the margin of victory
in Florida. One of the painful lessons we learned was the need
to have a voter verification system which is at the center of
this bill. It will allow increasing numbers of first-time
voters and people who have some difficulty in voting because of
age or some other infirmity to be more assured of casting their
vote appropriately and with confidence. Time is of the essence
with this bill. I think we should stick with Congressman
Hoyer's goal of trying to have some influence on the quality
and integrity of the 2002 elections. I know that is getting
increasingly difficult in certain parts of the country, but
this money is not just for the machines. I think we all know
that a lot of the cost of the election infrastructure in our
State and local government suffers from benign neglect and at a
time where State and local government is increasingly
experiencing revenue shortfalls, the money that we are going to
get out to deal with poll workers, training, education and
those details that usually go unnoticed is going to be more
important than ever.
To those who think this bill doesn't go far enough, let me
just say that those of us in Florida who have become experts on
election law, every Democrat in the Florida Congressional
delegation is a cosponsor of this bill, and I am confident that
most all of the Republicans will be as well, and certainly
Chairman Young has been a strong supporter. We are resolved
that we should not repeat the lessons that occurred in the last
election in 2002. And while there may be room for improvement
along the amendatory process or in the next session of
Congress, we would urge those of you who want to improve the
bill to keep in mind that ultimately something is better than
nothing here, particularly since the clock is ticking on the
2002 elections.
So thank you again Mr. Hoyer, Mr. Chairman, for your work
on this bill.
The Chairman. Thank you. Mr. Reynolds.
Mr. Ehlers. Thank you, Mr. Chairman, for giving me the
opportunity----
The Chairman. Mr. Ehlers--I am sorry. Mr. Reynolds.
Mr. Reynolds. Mr. Chairman, at this point in our Nation's
history, our society is once again reflecting on the great
rights and privileges we enjoy as citizens of the United
States. And no right is more fundamental or basic in our way of
life than the right to vote. I just want to join in the chorus
of this committee to thank you as chairman and Ranking Member
Hoyer for your leadership in working closely with this
committee and the House as a whole as we brought experts from
across the country in here in a bipartisan fashion to outline
the challenges of elections at the State and local level and
some of the solutions where we could be helpful. And you are
both to be commended for putting together what is a
comprehensive and challenging bill that now enjoys such strong
support with cosponsorship as we move this through the House.
The Chairman. Thank you. Mr. Ehlers.
Mr. Ehlers. Thank you, Mr. Chairman. I just wanted to add a
comment to my previous statement, and I ask unanimous consent
that this be entered in the record with my original statement.
The Chairman. Without objection.
Mr. Ehlers. I neglected to mention an important factor of
the bill that I had authored, which is incorporated here, is to
require also in addition to the technical research, there will
be human factors research on making the computer or the
operating system or the ballot as understandable as possible,
so research will have to be done so that there can be a minimum
of voter confusion. I have often heard people say, well, we
need better voter education. That is not the answer. You can't
teach people very well to do something they only do a couple
times a year and expect them to remember it. We have to have
systems that are so simple and straightforward that there
cannot be confusion, there cannot be any wrong voting as a
result of misunderstanding. And so I hope that this addition
will take care of it.
Mr. Hoyer. Would the gentleman yield?
Mr. Ehlers. Yes.
Mr. Hoyer. As you know, we have included in this bill
grants, both for nonprofits, i.e., universities. Chairman Ney
was very much involved in that, as you were, and for
manufacturers who may want to participate like they do with
DARPA in developing new technology to accomplish exactly that
objective. I agree with you 100 percent. We ought to be able to
make technology that is so voter friendly that in and of itself
it will reduce very substantially errors, which of course is
our objective.
Mr. Ehlers. I thank you very much, and I ask unanimous
consent that that also be entered immediately after----
The Chairman. Without objection. I wanted to note on that
that the three different ways to receive that money, you have
public and private and the pilot program. If you talk to some
of the people that came here from around the country that did
the expo here in the room, some of these companies are
developing devices that automatically take into account every
form of a disability or the ability of a voter to vote that may
have some technical problems with voting, and I am hoping
that--and I am not saying secure of, but technology is going to
be part of the ability to have good accurate votes, and I am
hoping that that entrepreneurial money and research only will
help towards that cause.
Mr. Linder.
Mr. Linder. Thank you, Mr. Chairman. I will submit a
statement in writing for the record, and let me just say that
as we move through these processes, I would hope at some point
we take as much interest in making sure that the person who
presents himself for a ballot is indeed who he says he is. We
have not been doing enough to eliminate voter fraud and I hope
as we move forward, we will do some of that.
Thank you.
[The statement of Mr. Linder follows:]
Statement of Hon. John Linder
Mr. Chairman, as terrorists attempt to undermine our democracy, it
is fundamental that Congress work to safeguard the very elements of
that democracy. The right to vote--the ability to cast a ballot and
influence the political state of affairs regardless of sex, race or
circumstance--is the very essence of a democratic society, and without
the opportunity to freely and openly voice thoughts and concerns at the
ballot box, Americans would be no better off than the citizens
oppressed by governments throughout the world. And thus, I am pleased
to join my colleagues here today in marking-up legislation that will
make significant strides in ensuring voting rights for all Americans.
The Founders of our nation intentionally avoided issuing specific
guidelines by which the states were to conduct elections because they
recognized that circumstances and needs would be different throughout
the country. I believe this is the correct approach, and it is not the
federal government's role to mandate the type of election equipment
used in every voting precinct or to require a standard procedure for
resolving election disputes for local office. The ``Help America Vote
Act'' maintains this ``hands-off'' federal role, and reaffirms that our
role is one of facilitation rather than regulation and imposition.
The bill provides federal guidance without imposing federal
mandates, financial assistance without burdensome federal regulation.
Additionally, it establishes minimum standards to help states create
uniformity in election procedures and facilitate fair and accurate
voting standards across precincts.
The ``Help America Vote Act'' will also eliminate a significant
source of fraud and abuse that has plagued our election system for
decades. The bill provides for list maintenance, which allows election
officials to eliminate fraudulent and duplicate entries on registration
rolls. Inaccurate voter registration lists condone voter fraud and
undermine the integrity of our electoral process. If we are to have
faith in the sanctity of election results, we must be able to confirm
the identity of voters and know that only those individuals who are
eligible to vote actually cast ballots.
As Americans, we are privileged to live in a society that
recognizes the importance of an individual's right to vote. Perhaps
this single act is among the most American that we undertake on a
regular basis, as it recognizes our commitment to the principles of
democracy and freedom. And today, Congress reaffirms our commitment to
those principles and acknowledges the role of voting in maintaining
them.
The Chairman. I want to thank the gentleman. The Chair lays
before the committee the bill H.R. 3295 that has been provided
to members in advance. Without objection, the bill will be
considered as read and open to amendment at any point.
Are there any amendments? Mr. Reynolds.
Mr. Reynolds. Mr. Chairman, I am offering an amendment on
behalf of our colleague Mark Kirk, who--with legislation that
outlined what my proposal is to allow polling places to be
located on military installations. This amendment repeals a
136-year-old Civil War law that the Defense Department only
began to reinforce in 1999 to outlaw existing polling places.
Language inserted in the fiscal year 2001 appropriations bill
suspended the enforcement of this law in 2000, but a permanent
solution is needed.
The amendment allows but does not require military base
commanders to permit voting sites on military installations.
These polling places would be only for residents of that
military installation. The Kirk amendment keeps politics and
the military separate. It only allows military voters the right
to vote near their residence, like any other American.
Without this amendment, on some large installations, base
residents would have to travel for many miles to reach an off-
base voting site. The Congressional Research Service has
identified at least 20 affected jurisdictions' polling, some of
which have been in use for at least 15 years. This amendment
ensures that these base residents have the same convenient
access to a local polling place as other Americans.
This language has been approved by the Defense Department
and the White House, and I urge its adoption.
[The information follows:]
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The Chairman. Is there any discussion on the amendment?
Mr. Davis. Mr. Chairman.
The Chairman. Mr. Davis.
Mr. Davis. I would like to ask a couple questions of Mr.
Reynolds, if I can. I am generally a supporter of this concept,
Mr. Reynolds, but the devil of course is in the details. Don't
we already have language that is the subject of the conference
committee on the defense authorization bill that comes
reasonably close to doing what your amendment will be doing
today?
Mr. Reynolds. I can say that the language that was inserted
in the 2001 appropriation bill suspended the enforcement of the
law in 2000, but it does not reflect a permanent solution,
which this Representative would do.
Mr. Davis. Mr. Chairman, perhaps Mr. Reynolds would like to
see a copy of this. I have a copy of a letter to the ranking
Democrat on the Armed Services Committee, Mr. Skelton, that
appears to be--it is from the Defense--the Justice Department.
It appears to be commenting on language that is in the 2002
defense authorization bill.
Mr. Reynolds. Has that gone to conference and come before
us?
Mr. Davis. I believe that it has, and I would like to give
you a chance to look at this and see whether it might lead you
to believe that perhaps this issue is already being addressed
in the conference committee. And if it is not being addressed,
this amendment could be offered on the floor.
And the other point I want to----
The Chairman. Would the gentleman yield? I just note that
it was in the House version and not the Senate version. So I am
not sure as to--it was in the House version.
Mr. Reynolds. And I do know from being on the Rules
Committee that the conference committee has not concluded its
work, and we have no final idea what is in the defense
authorization bill. As a matter of fact, this body could
consider an appropriations bill on defense before we actually
have a conference report back on the defense authorization.
Mr. Davis. Well, the further point I wanted to make is that
this is a letter to Congressman Skelton expressing concerns and
suggestions about this language, which we have had no testimony
on. We have absolutely no record on this, Mr. Chairman, and
again, I am a supporter of the concept but if we are going to
put something into this bill, I would prefer we do it with a
little bit more preparation, and it does appear to be an active
issue in the conference committee. I cannot speak to what is in
the Senate bill, but perhaps we can find out more----
Mr. Reynolds. Would the gentleman yield?
Mr. Davis. Absolutely.
Mr. Reynolds. A similar bill, H.R. 2006, passed in the
House on October 10, 2000 by a vote of 297 to 112 on this. So
it is not a new concept or a new language of legislation. The
House has seen it in prior existence, and we have just dealt
with it on a temporary basis versus permanent.
Mr. Davis. And Mr. Chairman, and I believe I voted for that
bill, Mr. Reynolds. And here is another letter. I would like to
ask both these letters be entered into the record.
The Chairman. Without objection.
[The information follows:]
Department of Justice,
Office of Legislative Affairs,
Washington, DC, November 13, 2001.
Hon. Ike Skelton,
Ranking Minority Member, Committee on the Armed Services,
House of Representatives, Washington, DC.
Dear Congressman Skelton: This letter presents the views of the
Department of Justice on S. 1438, the ``National Defense Authorization
Act for Fiscal Year 2002,'' as passed by the House and Senate. The
Department has constitutional and other concerns about both versions of
the bill.
I. House Version
A. CONSTITUTIONAL CONCERNS
Section 141: Destruction of chemical and munitions stockpiles
Section 141 of the bill would amend section 152 of the National
Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-106; 50
U.S.C. Sec. 1521 note) to restrict the Secretary of Defense from
initiating destruction of a chemical munitions stockpile stored at a
site until, inter alia, the Under Secretary of Defense for Acquisition,
Technology, and Logistics ``recommends initiation of destruction at the
site after considering the recommendation by the [oversight] board
established by subsection (g).'' Proposed section 152(b)(5). The
oversight board in question ``established by subsection (g)'' would
include as one of its six members an ``individual designated by the
Under Secretary from a list of three local representatives of the area
in which the site is located, prepared jointly by the Member of the
House of Representatives who represents the Congressional District in
which the site is located and the Senators representing the State in
which the site is located.'' Proposed section 152(g)(1)(F). If an
oversight board were to recommend against initiation of destruction of
the chemical munitions stockpile at a particular site, the Under
Secretary then would be prohibited from recommending to the Secretary
the initiation of destruction ``until 90 days after the Under Secretary
provides notice to Congress of the intent to recommend initiation of
destruction,'' proposed section 152(g)(3)--which, in turn, would
prevent the Secretary from initiating destruction of a chemical
munitions stockpile until 90 days after the Under Secretary had
provided the notice of intent to Congress. Ultimately, an oversight
board that includes a member who is in effect designated by
congressional agents would have the power to delay the Under
Secretary's recommendation to the Secretary, and the Secretary's
execution of a power otherwise duly delegated to him.
Such a power to delay Executive action, if viewed as the exercise
of ``significant authority pursuant to the laws of the United States,''
Buckley v. Valeo, 424 U.S. 1, 126 (1976)(per curiam), would render the
Board members ``Officers'' who must be appointed in conformity with the
Appointments Clause of the Constitution, U.S. Const. art. II, section
2, c1.2 (providing that principal officers must be appointed by the
President with the advice and consent of the Senate and that inferior
officers may be appointed by the President alone, the courts, or the
Heads of Departments). The ``sixth'' member of each oversight board
would be appointed, not by the Head of a Department, but instead by the
Under Secretary, which would raise an Apppointments Clause problem
assuming the member is an inferior officer. Moreover, the bill would
limit the pool of persons that the Under Secretary may consider for
such positions to those persons recommended by the designated members
of Congress. The Constitution does not permit Congress to direct the
appointing authority (the President, the Federal Courts, or the heads
of departments) to select an officer from a list submitted by Congress,
or otherwise to restrict unduly the apointment discretion. See, e.g.,
Civil-Service Comm'n, 13 Op. Att'y Gen. 516, 520-21, 524-25 (1871);
Promotion of Marine Officer, 41 Op. Att'y Gen. 291 (1956). Moreover,
congressional officials' power to establish the lists from which
persons would be chosen for service on the oversight boards also raises
separation of powers questions, because Congress may not vest executive
functions in a person or entity subject to congressional control. See,
e.g., Metropolitan Washington Airports Auth. v. Citizens for the
Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991); Bowsher v.
Synar, 478 U.S. 714 (1986).
Section 542: Medal of Honor for Jewish and Hispanic Veterans
Section 542 of the bill would require the Secretary of each
military department to review the service records of certain Jewish
American and Hispanic American war veterans to determine whether or not
those veterans should be awarded the Medal of Honor. Subsections 542(e)
and (f) would provide that the President could make an award of the
Medal of Honor to such Jewish American and Hispanic American war
veterans, in accordance with a recommendation of a Secretary, without
regard to: (1) any regulation or other administrative restriction on
the time for awarding the Medal of Honor; (2) any regulation or other
administrative restriction on the awarding of the Medal of Honor for
service for which a Distinguished Service Cross, Navy Cross, or Air
Force Cross has been awarded; and (3) specific statutory criteria,
restrictions, and limitations (e.g., time limitations) respecting the
award of the Medal of Honor that are codified in 10 U.S.C.
Sec. Sec. 3744, 6248, and 8744. Subsection 542(g) would define ``Jewish
American war veteran ``to mean'' any person who served in the Armed
Forces during World War II or a later period of war and who identified
himself or herself as Jewish on his or her military personnel
records.''
The exemptions and exceptions contained in subsection 542(f) raise
serious concerns under the Establishment Clause of the First Amendment
and the Equal Protection component of the Due Process Clause of the
Fifth Amendment, by making certain Jewish and Hispanic veterans
eligible for the Medal of Honor under circumstances in which other,
similarly situated veterans would not be eligible to receive the award.
With respect to Jewish American war veterans, the distinction in
question likely would be viewed as a sect-based religious
classification. ``The clearest command of the Establishment Clause is
that one religious denomination cannot be officially preferred over
another.'' Larson v. Valente, 456 U.S. 228, 244 (1982). Accordingly, a
denominational preference can be constitutional, if at all, only if it
``is justified by a compelling governmental interest * * * and * * * is
closely fitted to further that interest.'' Id. at 247. Similarly, the
Equal Protection Clause of the Fourteenth Amendment in many contexts
would prohibit States from discriminating on the basis of
religion,1 and this prohibition would apply to the Federal
government by virtue of the equal protection component of the Due
Process Clause of the Fifth Amendment.2
---------------------------------------------------------------------------
\1\ See, e.g., Niematko v. Maryland, 340 U.S. 268 (1951); Fowler v.
Rhode Island, 345 U.S. 67 (1953); McDaniel v. Paty, 435 U.S. 618, 643-
46 (1978) (White, I., concurring in the judgment).
\2\ See United States v. Armstrong, 517 U.S. 456, 464 (1996)
(citing Oyler v. Boles, 368 U.S. 448, 456 (1962)).
---------------------------------------------------------------------------
With respect to Hispanic American war veterans, the distinction in
question likely would be viewed as a racial classification. The equal
protection component of the Due Process Clause of the Fifth Amendment
permits such a racial classification only if it furthers a compelling
government interest (such as remedying past discrimination) and is
narrowly tailored to achieve that interest. Adarand Constructors, Inc.
v. Pena, 515 U.S. 200, 227 (1995).
The bill itself does not explain what compelling government
interests might underlie the religious and racial classifications in
section 542(f). To survive strict scrutiny, the provision needs--at a
minimum--to be supported by specific findings (backed up by a
documented record) of past governmental discrimination against Jewish
and Hispanic veterans with respect to the award of such medals.
Section 1051(a): Plan for securing Russia's nuclear weapons, material,
and expertise
Section 1051(a) of the bill would require the President to submit
to Congress, not later than June 15, 2002, a plan ``for cooperation
with Russia on disposition as soon as practicable of nuclear weapons
and weapons-usable nuclear material in Russia that Russia does not
retain in its nuclear arsenal; and * * * to prevent the outflow from
Russia of scientific expertise that could be used for developing
nuclear weapons or other weapons of mass destruction, including
delivery systems.'' Subsection 1051(c), in turn, would provide that
``[i]n developing the plan required by subsection (a), the President
shall consult with Russia regarding the practicality of various
options.''
The Constitution commits to the President the primary
responsibility for conducting the foreign relations of the United
States, see, e.g., Department of Navy v. Egan, 484 U.S. 518, 529 (1988)
(the Supreme Court has ``recognized `the generally accepted view that
foreign policy was the province and responsibility of the Executive'
'') (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)); Alfred Dunhill
of London, Inc. v. Republic of Cuba, 425 U.S. 682, 705-06 n.18 (1976)
(``[T]he conduct of [foreign policy] is committed primarily to the
Executive Branch''), and the exclusive responsibility for formulating
the position of the United States in international fora and for
conducting negotiations with foreign nations, see, e.g., United States
v. Louisiana, 363 U.S. 1, 35(1960) (the President is ``the
constitutional representative of the United States in its dealings with
foreign nations''). Subsection 1051(c) would appear to violate these
principles by requiring the President to ``consult'' with Russia on a
particular subject, even in circumstances where the President might
conclude that such consultation would be detrimental to United States
foreign relations. Therefore, we recommend that the word ``shall'' in
subsection 1051(c) be changed to ``should.''
B. OTHER CONCERNS
Sections 552 and 2813: Electronic voting demonstration project
While we do not object to sections 552 and 2813, we note that the
implementation of certain aspects of these sections by States and
localities that are subject to section 5 of the Voting Rights Act, 42
U.S.C. 1973c, would require preclearance pursuant to the Act. For
example, the discretionary decision to establish new polling places on
military installations would need to be submitted for section 5 review.
With respect to the electronic voting demonstration project, any
covered State or locality that chose to participate would be required
to submit for section 5 review its implementation procedures for
carrying out the alternate method of voting. Such submissions were made
by counties around the country that participated in a similar Defense
Department project in the 2000 election.
Section 1024: Assignment of Armed Forces to assist the INS and the
Customs Service
Section 1024 of the House version would authorize the Secretary of
Defense (upon presidential certification of a request of the Attorney
General or by the Secretary of the Treasury) to assign members of the
military to assist the Immigration and Naturalization Service (``INS'')
and the Customs Service in combating terrorists and drug traffickers.
We support section 1024 except for its requirement that the assisted
agency reimburse the Defense Department for assistance provided (in the
absence a waiver from the Defense Department). The legislation should
not give the Secretary of Defense--or the Attorney General--the
authority to decide unilaterally which of the two Executive departments
involved will pay from its appropriations the cost of the support
provided. Instead, the legislation should leave that decision to the
President, to be made at the time in the light of the circumstances
then prevailing.
Section 1107: Limitation upon premium pay
Section 1107 of the House version would make Government-wide
changes to overtime pay provisions of FEPA. The Administration strongly
opposes section 1107 and urges its deletion from the bill.
We also note that section 1107 contains what appears to be a
typographical error that would significantly limit Federal civilian
employees' entitlement to overtime pay under title 5. Currently, an
employee's entitlement to receive premium pay for overtime work is
capped at rate of GS-15, step 10. Section 1107 provides that an
employee may be paid premium pay under FEPA only to the extent that the
employee's aggregate pay ``would . . . exceed'' the maximum rate of pay
of a GS-15. Thus, as drafted, section 1107 would permit agencies to pay
premium pay only when an employee's aggregate annual pay, i.e., basic
pay plus premium pay, exceeded the rate of GS-15, step 10. This
effectively would limit payment for overtime work to the highest-paid
General Schedule employees.
Presumably, the drafters intended that section 1107 permit premium
pay for an employee only to the extent the employee's aggregate pay
would not exceed the statutory pay limitation. See 5 U.S.C.
Sec. 5547(a) (which currently provides that an employee may be paid
premium pay ``only to the extent that the payment does not cause his
aggregate rate of pay for any pay period to exceed the maximum rate for
GS-15'').
Additionally, section 1107 would change the period of time used to
determine an employee's aggregate pay from ``any pay period'' to ``in
any calendar year.'' This change would make it difficult--if not
impossible--to determine the appropriate amount of pay in any given pay
period because the agency could not determine prospectively whether or
to what extent an employee's aggregate annual pay would exceed the
maximum limitation on premium pay.
Currently, an agency determines at the end of each pay period the
extent to which an employee's basic pay at the time, plus any premium
pay due for approved overtime hours during the pay period, would exceed
the GS-15, step 10, pay limitation and adjusts the employer's total pay
accordingly. However, because an agency likely would not know at the
end of each pay period the amount of any adjustments that would be made
to an employer's basic pay during the remainder of the calendar year
(such as fiscal year cost of living or locality pay adjustments,
unscheduled promotions or within grade increases (or denial of
otherwise scheduled promotions or within grades)), or the total amount
of premium pay the employee would receive during the calendar year (due
both to fluctuations in the statutory rate for premium pay and the
number of compensable overtime hours that will be worked), it would be
necessary to wait until the end of the calendar year to determine the
employee's aggregate pay and whether, and to what extent, it had
exceeded the statutory limit. As a result, an employee's final pay
check in each calendar year would have to be adjusted, i.e., reduced to
account for any overpayments or increased for underpayments, made
during the course of the calendar year that resulted from the
employee's annual aggregate pay having exceeded the pay limitation. The
proposed change of the time period for computing the pay limitation in
proposed subsection (c) also would affect the payment of overtime to
certain law enforcement officers.
Section 2812: Defense Department Indemnification for pollutant harm
Section 2812 of the House version would require the Secretary of
Defense to indemnify persons or entities that own or control property
that previously was part of the Brooks Air Force Base in Texas. Among
other things, the Secretary would be required to hold harmless, defend,
and indemnify in full the persons or entities with respect to any
liability arising from the release or threatened release of any
hazardous substance, pollutant, or contaminant, or petroleum or
petroleum derivative as a result of Defense Department activities,
including liability under the Comprehensive Environmental, Response,
Compensation, and Liability Act (``CERCLA''). We strongly oppose the
broad indemnification this provision would establish.
First, the provision does not condition the United States'
liability upon previously appropriated monies. This contravenes the
sound principles underlying the Anti-Deficiency Act, 31 U.S.C.
Sec. 1341.
Second, section 2812 expands the United States' potential tort
liability well beyond that provided in the Federal Tort Claims Act
(``FTCA''), 28 U.S.C. Sec. 2671, which provides a well-established and
effective mechanism for dealing with the government's potential tort
liability. Further, an important element of tort law is deterrence, not
simply compensation after the fact of injury. This indemnity clause
creates a disincentive for unknown future lessees and transferees of
the property to make full disclosure, issue appropriate warnings, and
exercise due care concerning the prior use and potential contamination
from the property.
Finally, section 2812 would be a potential source of legal
uncertainty. In accordance with existing law, including section 120 of
CERCLA, the Defense Department already has a legal responsibility to
clean-up, or pay for the clean-up of, Defense Department property. We
are concerned that section 2812 would imply that the current legal
requirements are insufficient and therefore create both significant
legal problems for the Federal government as well as the potential for
large unfunded liabilities. Depending on the clean-up issues attendant
to the site, subsection 2812(a)(3) of this section might create a
situation in which United States is required to defend commercial or
corporate entities against which it had brought an enforcement action
under CERCLA.
We urge that section 2812 be stricken from the bill. If it is
retained, it should be modified to clarify that indemnification
payments can be made only from previously appropriated Department of
Defense funds. Moreover, any decision of whether to settle or defend a
claim brought against a transferee should be subject to approval by the
Attorney General. Finally, the obligation to indemnify should terminate
at a time certain, for instance, five years after the transfer.
Section 2813: Use of military buildings as polling places
Section 2813 would implicate two Federal criminal statutes relating
to voting. It would incorporate into permanent law authorization for
polling places on military installations and reserve facilities,
``notwithstanding'' chapter 29 of title 18, and specifically,
notwithstanding section 592, which prohibits stationing armed troops at
polls, and section 593, which prohibits interference with voting by
military officers.
Section 2813 is consistent with the temporary authorization
approved last year for such voting places for the 2000 general
election. Section 2813 should more fully address the potential
applicability of sections 592 and 593 of title 18 to actions that an
installation commander might be required to take in order to protect
people or property from imminent harm while a building on a military
installation is being used as a polling place. We suggest that both
provisions include an exception for the legitimate law enforcement
actions of military personnel to protect people or property from
imminent harm at any place where a general or special election is held
on a military installation in accordance with sections 2670(h), 18235,
or 18236 or title 10.
II. Senate Version
A. CONSTITUTIONAL CONCERNS
Two sections of the Senate version raise constitutional concerns.
______
Section 823: Mentor-Protege procurement program
Section 823 would codify the ``Mentor-Protege'' defense contracting
program (``mentor program'') as a permanent provision at 10 U.S.C.
Sec. 2403. We have serious constitutional concerns about this program.
These concerns are underscored by a recent Federal court of appeals
opinion reversing a lower court decision that had upheld the
constitutionality of a defense contract preference program (section
1207 of the National Defense Authorization Act of 1987) that was based
on the same definition of ``disadvantaged small business concern''
underlying the mentor program (i.e., 15 U.S.C. Sec. 637(d)(3)(C)). See
Rothe Development Corp. v. U.S. Dept. of Defense, 262 F.3d 1306 (Fed.
Cir. 2001).
The mentor program extends various substantial Federal contracting
benefits and preferences to ``eligible small business concerns.'' The
provision defines ``eligible small business concerns'' to mean either
``a disadvantaged small business concern'' or ``a small business
concern owned and controlled by women.'' The former term is defined to
mean ``a small business concern owned and controlled by socially and
economically disadvantaged individuals, as defined in section
8(d)(3)(C) of the Small Business Act (``SBA,'' 15 U.S.C.
637(d)(3)(C)),'' business entities owned and controlled by Indian
tribes or Native Hawaiian Organizations, or qualified organizations
employing the severely disabled. Under section 8(d) of the SBA, there
is a statutory presumption that certain designated racial or ethnic
groups (e.g., Blacks, Hispanics, Native Americans, and Asian Pacific
Americans) satisfy the requirement for social and economic
disadvantage. See 15 U.S.C. Sec. 637(d)(3)(C).
The provisions of the mentor program applicable to minority
institutions--as distinguished from the women-owned concerns \3\--would
be subject to strict scrutiny under Adarand Constructors Inc. v. Pena,
515 U.S. 200 (1995), ``as racial or ethnic classifications.'' From the
fact of the bill's language establishing the program, we cannot discern
the objectives or supporting evidence that would be likely to satisfy
review under that test. Our concerns in this respect are amplified by
the Rothe opinion.
---------------------------------------------------------------------------
\3\ Gender-based classifications currently are subject to a form of
equal protection scrutiny (``intermediate scrutiny'') that is less
exacting than the strict scrutiny applied to racial or ethnic
classifications. However, it is not at all clear that S. 1438's
preferential provision for female-owned concerns would satisfy even
that level of constitutional scrutiny without a factual demonstration
of the ``exceedingly persuasive justification'' required to satisfy
that standard. See United States v. Virginia, 116 S. Ct. 2264, 2274
(1996).
---------------------------------------------------------------------------
The Rothe opinion sets forth exacting standards that would have to
be satisfied upon remand if the Defense Department's ``Section 1207''
contracting goal program could be considered constitutionally
sustainable. Apart from demonstrating a compelling government interest
that is applicable to all of the racial or ethnic groups that benefit
from the bill's statutory presumption of social and economic
disadvantage, the following factors must be considered in evaluating
whether the program is narrowly tailored to satisfy such compelling
interest: (1) the necessity of the remedy; (2) the efficacy of
alternative, race-neutral remedies; (3) the flexibility of the remedy;
(4) the relationship of the remedy to the relevant labor market; (5)
the impact of the remedy on the rights of third parties; and (6) the
overinclusiveness or underinclusiveness of the racial or ethnic
classification used in the program. Section 823's mentor-protege
provisions likely would be subject to the same or similar standards. In
the absence of a supporting demonstration that the mentor program
satisfies these standards, the provisions is constitutionally
objectionable.
Section 1044: Chief Operating Officer of the Armed Forces Retirement
Home
Section 1044 of the bill provides for the appointment of a Chief
operating Officer of the Armed Forces Retirement Home by the Secretary
of Defense. It appears that this Chief Operating Officer would be an
inferior officer of the United States, whose appointment is governed by
the provisions of the Appointments Clause, U.S. Const. art. II, sec 2
cl.2. Section 1044 requires that the person appointed to this office
must, inter alia, (1) be a continuing care retirement community
professional; (2) possess experience and expertise in the operation and
management of retirement homes; and (3) posses experience and expertise
in the provision of long-term medical care for older persons. We have
objected consistently to legislative provisions that unduly restrict
the ``scope for the judgment and will of the person in whom the
Constitution vests the power of appointment'' as being inconsistent
with the Appointments Clause, Civil Service Commission, 13 Op. Att'y
Gen. 516, 520-21 (1871). Because we believe the above provisions unduly
restrict the Secretary's appointment power, we object to this
provision.
B. OTHER CONCERNS
Section 821: Competition requirements for required source purchases
Section 821 of the Senate version would limit the applicability of
mandatory source requirements to the Secretary of Defense with regard
to procurement from the Federal Prison Industries (``FPI'' or trade
name UNICOR). The FPI is the Bureau of Prisons' most important
management program to relieve inmate idleness and to provide job skills
that reduce recidivism.We have sent a separate letter setting forth our
concerns with this provision.
Section 1066: Radiation exposure compensation
Section 1066 of the Senate version would establish capped
entitlement payments for the Radiation Exposure Compensation Act
program. We support this provision because we expect the amounts
provided under it to cover the cost of the awards we project. However,
the House version does not contain funding language for the radiation
compensation program. We urge the inclusion of section 1066 of the
Senate version in the ultimate version of the Defense Authorization
Act.
Section 3151: Energy employees occupational illness compensation
program
The Department of Justice opposes section 3151(c), which would
loosen the standard for recovery for chronic silicosis under the Energy
Employees Occupational Illness Compensation Act (``EEOICA''). Under
current law, chronic silicosis is the only condition for which the
EEOICA provides compensation where the exposure to potentially
hazardous material was not unique to the Nation's nuclear weapons
program. Thus, it does not promote the objectives of the EEOICA to
``ensure fairness and equity'' for civilians who ``performed duties
uniquely related to the nuclear weapons production and testing
programs'' of the Government for ``beryllium-related health conditions
and radiation-related health conditions.'' See Pub. L. 106-398,
Sec. 3602(a)(8). Far too many of these civilians were unable to secure
State workers' compensation benefits, due, in part, to the unusual
nature of their occupational exposures.
In contrast, chronic silicosis comes from exposure to silica (a
non-radioactive substance) in the course of digging nine shafts, in
these cases, for underground nuclear testing. But there was nothing
``uniquely-related'' about these activities and--more importantly--
unlike the other diseases EEOICA covers, impaired victims of silica
exposure have been able to secure traditional workers' compensation.
Nevertheless, the Administration acceded to the inclusion of chronic
silicosis.
But section 3151 would take the inclusion of this condition even
further from the policies underlying the EEOICA: Our Government's
intention to provide a type of Federal workers' compensation program
for those who were injured by hazards uniquely connected to the
development of nuclear weapons for national defense. The current EEOICA
standard for what may constitute chronic silicosis may not have a
connection to whether a claimant was impaired. Indeed, it is akin to
measurements of asbestos exposure (asbestos fibers and silica fibers
enter the body in very similar ways), in which workers may have
evidence of asbestos exposure, but no actual impairment. Section
3151(c) would compound these problems by lowering the standards for the
required silica measurement. Thus, the proposed amendment would
exacerbate a situation in which workers demonstrating the most minimal
exposure measurable may secure payments of $150,000, although they have
no impairment whatsoever. Indeed, part of the asbestos litigation
problem is the presence of enormous numbers of lawsuits in which
claimants secure recovery for similarly-unimpaired people who can
demonstrate minimal presence of asbestos.
We urge the deletion of this provision.
Thank you for the opportunity to present our views. Please do not
hesitate to call upon us if we may be of additional assistance. The
Office of Management and Budget has advised us that from the
perspective of the Administration's program, there is no objection to
submission of this letter.
Sincerely,
Daniel J. Bryant,
Assistant Attorney General.
General Counsel of the Department of Defense,
Washington, DC, October 26, 2001.
Hon. Bob Stump,
Chairman, Committee on Armed Forces,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This is in response to your request for the
views of the Department of Defense on H.R. 2006, 107th Congress, a bill
``To amend titles 10 and 18, United States Code, and the Revised
Statutes to remove the uncertainty regarding the authority of the
Department of Defense to permit buildings located on military
installations and reserve component facilities to be used as polling
places in Federal, State, and local elections for public office.''
We note that the House of Representatives incorporated the
substantive provisions of H.R. 2006 as section 2813 of H.R. 2586, the
National Defense Authorization Act for Fiscal Year 2002. The Department
would support section 2813 if it is modified as discussed herein.
The rights of American citizens to participate in the democratic
process are among the important freedoms members of our armed forces
defend. Therefore, the Department believes every effort should be made
to ensure that they have the ability to vote, without obstacles. At the
same time, the Department is concerned that allowing its facilities to
be used as polling sites may result in conduct that could inadvertently
violate criminal statutes discussed below.
Section 592 of title 18, United States Code, provides that:
``[w]hoever, being an officer of the Army or Navy, or other person in
the civil, military or naval service of the United States, orders,
brings, keeps, or has under his authority or control any troops or
armed men at any place where a general or special election is held,
unless such force being necessary to repel armed enemies of the United
States, shall be fined under this title or imprisoned not more than
five years or both. * * *''
Similarly, section 593 of the same title subjects members of the
Armed Forces to criminal penalties if they ``impose or attempt to
impose any regulations for conducting any general or special election
in a State, different from those prescribed by law,'' or ``interfere in
any manner with an election officer's discharge of his duties.''
The proposed conforming amendments to sections 592 and 593 of title
18 do not fully address the potential applicability of these criminal
provisions to actions that an installation commander might be required
to take in order to protect people or property from harm while a
building on a military installation is being used as a polling place.
We suggest that both provisions include an exception for the actions of
military personnel at any place where a general or special election is
held on a military installation in accordance with sections 2670(b),
18235, or 18236 of title 10.
Furthermore, we believe it is important that the availability of
polling places on military installations be limited to use by
individuals who reside on that military installation, or other military
personnel. It is imperative that the commander of a military
installation have complete control over the facilities within his or
her authority. The Department is concerned that if a commander closes
or restricts access to a military installation in order to respond to a
threat soon before, or on the date of, an election, he might be seen as
preventing citizens from being able to vote. Even if his response to a
threat is only to require all those wishing to enter the facility to
present valid identification and subject their vehicles and packages to
search, he could be perceived as intimidating private citizens to such
an extent that they would not enter the installation to vote.
Additionally, under the proposed legislation, once an installation
is made available as a polling place, the Secretary concerned would be
required to make it available for subsequent elections unless the
Secretary provided notice to the Congress. The provisions should be
clear in its application that it refers only to those installations
made available as polling places in accordance with this legislation.
Further, we suggest that the notice be sent to ``the State or local
officials responsible for providing for polling places,'' rather than
to the ``Congress.'' Certainly, those responsible for providing polling
places need to have timely notification that facilities that they might
be relying upon will not be available. If the State or local officials
believe that the Secretary's action is unwarranted, they certainly
would inform interested members of Congress.
National Guard armories or other Guard facilities are subject to
the control of state Governors through their Adjutants General, not the
Department of Defense, and our concerns noted above do not apply to
such facilities. Decisions on the use of such facilities are the
responsibility of the concerned states.
The Office of Management and Budget advises that, from the
standpoint of the Administration program, there is no objection to the
presentation of these views for the consideration of Congress.
Sincerely,
William J. Haynes II.
Mr. Davis. To Chairman Stump expressing concerns about that
language, which I think we would further want to address before
we adopt----
Mr. Reynolds. Who was the letter from?
Mr. Davis. This is a letter from the General Counsel at the
Department of Defense, William Haynes, and it may be that what
Mr. Kirk has done is to address the concerns that have been
expressed in both these letters, but I don't think either you
or I nor members of the committee know this, and I think it
would be useful if we knew it before we acted today on this
very important issue.
Mr. Reynolds. Would the gentleman yield?
Mr. Davis. Absolutely.
Mr. Reynolds. As I indicated in my remarks, I had brought
the amendment to the floor, there has been consultation. This
language has been approved by the Department of Defense and the
White House prior to me bringing it before this body for
consideration. And I also understand that our language is
different from the Armed Services language, based on the fact
that this language does reflect the discussions with DOD.
The Chairman. If the gentleman would yield, also I wanted
to make a note of this. I was a conferee for a small portion,
which was on the military voting. I had originally asked that
just everything be removed from the conference. I don't know
where this specific part lies. I know one from the House, one
in the Senate is probably being discussed. Then it became a
little bit confusing, because after that we did talk to
individual members, Mr. Skelton, Mr. Hoyer, took out bits and
pieces. My theory was we were looking at military voting in
this bill that would be good if we would pursue it here,
although they had bits and pieces that did tie in.
So I think that bill--I am not speaking directly to this,
but just the process. That part of military voting is going to
be in DOD and part is going to be in here and that sometime we
have got to make them mesh together and work. I think it was a
little tough process----
Mr. Fattah. If the chairman would yield for one second--the
people who are dealing with these issues in the Armed Services
Committee and in Defense--is there something here that I am
missing about why they would not be dealing with this language
and why we would be dealing with it, because it is possible we
might not have all the information about such a subject, since
I at least don't serve on any such a committee that would have
great knowledge about why this could or could not be such a
wonderful idea for DOD. So for it to be sprung and we put it in
and then we go to the floor and then you have got Members, one
of the committees of jurisdiction who then raises objections to
it, it would seem to me it might be better to do it in a
reverse way, Mr. Chairman.
Mr. Reynolds. Would the gentleman yield? Just a reminder on
the amendment. This amendment allows but does not require
military base commanders to permit the voting sites on the
military installation, and as I said, it was only for the
residents of the military installation, but it is still on the
front line. The military commanders will make that decision on
the base, as this language is written, not that it is a mandate
on those commanders.
Mr. Fattah. You mean that in certain elections the
commander could allow a polling place and in certain elections
they would disallow it?
Mr. Reynolds. Well, I would hope that not be the case, but
it gives the discretion of having polling places to the
military commander of that base, not that the Congress mandates
that there will be those polling places.
Mr. Fattah. I will just ask one more question. I am going
to move on from here. Has this matter been the subject of the
Armed Services Committee itself, which would be the
jurisdiction in terms of military bases and what is allowable
and not allowable?
The Chairman. We did have communication with the majority-
minority staff of the Armed Services Committee on this.
Mr. Fattah. And they felt that this was a wonderful thing
for us to do, Mr. Chairman, or they paused and gave us reason
to pause?
Mr. Hoyer. Mr. Chairman, if I might interject.
Mr. Chairman. I will yield to you in a second. We were
addressing it here, because it was not clear if it would be in
the DOD bill.
Mr. Fattah. Well, all I am asking is did the chairman and
the ranking member staff on Armed Services want us to address
this?
The Chairman. Some do, some don't. But it was a staff-to-
staff thing.
Mr. Hoyer. Mr. Chairman.
Mr. Davis. Mr. Chairman, I recognize you are not going to
spend much more time on this, but I would like to make one
further point. The letter which I have now read to Congressman
Skelton specifically suggests a concern about two Federal
criminal statutes interfering with the ability of the base
commander to control security on the base, and perhaps somebody
can point it out to me, but I don't see where those two
specific points have been addressed in the Kirk amendment.
The reason this is such a good bill, Mr. Chairman, is we
have developed this with a very strong factual predicate. We
have had a lot of testimony. We have had absolutely no
testimony on this issue, and this document which is now a part
of the record, once you so choose, addresses two specific
concerns. If the Kirk bill addresses those concerns, Mr.
Reynolds, I think your amendment is in order and perhaps an
improvement over what is in the conference committee. But if it
doesn't, I think at best we are acting prematurely here, Mr.
Chairman.
The Chairman. I would note to you that on a couple of
issues, one, the gentleman from New York had stated, you know,
about the previous vote on this bill in support of it, we also
have had this issue around for about a week or so between the
majority and minority of the committee here. So I do want to
let you know, it had been out there and discussed, this
specific amendment and issue.
Mr. Hoyer. Mr. Chairman, speaking to Mr. Reynolds'
amendment, I will offer two amendments. We have discussed these
three amendments among ourselves, obviously could not agree on
the conclusion of these three amendments and therefore they are
not in the base bill. My concern with the circumstance
amendment--and, by the way, I talked to Ike Skelton last night.
I had dinner with Ike last night. He indicates that the
conference has not yet disposed of this issue. It is still you
should have active consideration in the conference. However, we
do deal with a large number of military voting issues in this
bill, obviously overseas. My problem, however, with the Kirk
amendment is a fundamental problem, and my concern that
historically one of the great strengths of America has been
that we have separated our military from our politics.
Mr. Hoyer. We don't have our military guarding polling
places. We don't have any special sort of operations for
military voters. Many nations do that. Many nations, the
military plays a very dominant role in the election process. I
am concerned that this, in effect, violates that principle of
the separation of the political sphere of our country and the
military sphere of our country.
Having said that, I am not going to live or die on whether
this amendment is adopted in terms of my support of this bill,
obviously. And I think the amendment, I presume is going to be
adopted. But it is a more basic concern. I think the Defense
Department is ambivalent at best. I think they will be more
pleased, obviously, with it being a discretionary act on behalf
of the base commander.
And the other problem I have there--Mr. Skelton and I were
discussing this and I have not read the CRS report--is that we
have a very large military facility in Prince George's County
down the road, which all of you know about and every one of you
has visited--Andrews Air Force Base. I have not asked and
therefore don't know, but my--Ike Skelton and I were both sort
of speculating. I will bet you there probably aren't 25 people
on that base who are Maryland voters, but living on base. There
are a lot of people who are working in Andrews, military and
nonmilitary, who live off base and who may well be registered
in Maryland because they have chosen Maryland not only as their
domicile, but as their residence. They are legal residents of
the State, and so they vote here.
But I would presume that the overwhelming number of people
who live on military bases are residents of another State.
Therefore, the complexity of trying to offer it to each one of
them, the opportunity to vote, would be overwhelming. So,
therefore, I presume the Kirk amendment is limited to a polling
place for the candidates in that particular area wherein the
base is located. Am I correct in that promise?
Mr. Reynolds. I believe so.
Mr. Hoyer. Tom, you see my problem? Because obviously a
base commander has got maybe 100 different--1,000 different
jurisdictions represented on base by his residents. He clearly
cannot provide, nor would he provide, for polling places for
every one of those--Montana, California, Florida, et cetera.
So as a practical matter, knowing philosophically I do
think I have a concern, but also as a practical matter, I am
not sure how you implement it unless you limit it to the
jurisdiction in which the base is located. And if you do, I
can't believe there would be very many people that would be
affected. But again----
Mr. Reynolds. Would the gentleman yield?
Mr. Hoyer. Sure.
Mr. Reynolds. As I listened to our generation and Vietnam
veterans talk about some of the problems of voting when they
were in Vietnam that are similar to what we are now resolving
today, or what we learned firsthand from this last election, we
have heard those challenges. And I certainly have heard the
opponents talk about not putting politics and the military in
any way together. But I don't see the election and a vote as
politics. I understand politics. I have been elected since I
was 23, and I know about where the line ends on Election day
when you go in to pull a lever. In my State, you have to be 500
feet away from the poll to even talk politics or campaign. So I
think they are kept separate. And I think the right to vote is
just what this is, giving military voters the right to vote.
I was thinking, while I am not an expert of Andrews Air
Force Base----
Mr. Hoyer. I want to reclaim my time. I hope nothing that I
said implied in any way that I don't think that every member of
the military not only has the right to vote but ought to be
facilitated in doing so.
Mr. Reynolds. What I heard was that some opponents who--
felt that politics and the military should be kept separate. I
agree with that. To make it very clear on the record, that
Election Day, walking in to cast a vote is not politics. It is
entering a right to vote and having that privilege that we have
as Americans to do.
And I am not expert on Andrews Air Force Base, but I know
it is big. I know it is bigger than the village that I come
from. And I know when I vote, I go up the street to my church,
and there are three precincts there. So trying to envision some
of our large military bases, particularly coming from the CRS
study that had 20 jurisdictions with polling places that would
be affected polling places--some which have been used for 15
years--if it is off base, and Andrews military personnel that
are able to meet the viewpoint of being able to vote, have a
significant travel off base.
Mr. Hoyer. Tom, I think you missed my point. I don't think
that there are more than probably--I don't know the number--
take a guess, high number of 50, who live on base, who are
Maryland residents and therefore can vote at a polling place 2
miles, 5 miles, 50 miles away from Andrews Air Force. My
presumption is that most of the people who live on base--there
are people that live off base, uniformed and civilians, who are
in fact residents of Maryland and live in my district or Al
Wynn's or other districts. But the people who live on base
largely are voting absentee because their residence is in a
State other than that in which they are living on Andrews Air
Force Base. That was my point. Not that I wanted them to travel
to long places. I don't think they should.
Let me make another point that politics--all of us have
been in this business for some period of time. For instance, a
complication. If you had a precinct on base that had a
substantial number of voters which would justify its
existence--I understand what you are saying about 500 feet--but
at all my polling places throughout my district, I have a
``Vote Hoyer for Congress'' sign. That is my right. And some
people, tragically, have the right to put up signs that say
vote against Hoyer. They say vote for X, Y or Z, but that is
their right. Would we allow that on a base that had a precinct
or polling place so that we can notify them that we want them
to vote for either Ney or for Hoyer?
The Chairman. I assume you could see billboards on the way.
Mr. Fattah. If the gentleman would just yield for a brief
moment. My brother was in the Air Force and stationed in Texas.
Under this amendment would there be a polling place at the base
where he could walk in and vote for his brother running for
Congress in Pennsylvania, or would he have to be a legal
resident of Texas and vote in the elections in Texas?
The Chairman. To answer the gentleman's question, you would
have to be a legal resident--I hope the day technology comes
where you can vote.
Mr. Fattah. I want to be clear about the legislative
intent. This would be limited to having those people who are
legal residents of the districts in which these bases where in
existence to vote, and not for anyone who happened to be on the
base, assigned or otherwise?
The Chairman. That would be correct, unless, of course, a
person changed their registration for some reason.
Mr. Fattah. Absent that, it is only for those people. I
think that it is a minor consequence and we should move on.
Mr. Reynolds. Just in conclusion of me offering the
amendment, basically in the spirit of this, bases that had
polling sites that have been used for the last 15 years
obviously are a value to the voters who use them.
One of the things I have from the Minnesota Secretary of
State--because I don't know what the Andrews Air Force voting
block is, as my colleague, Mr. Hoyer, has presented-- but the
Secretary of State of Minnesota, she writes to then her Senator
that for several decades local jurisdictions have been using
military bases and reserve facilities as polling places. As a
result many voters, including military personnel, will be
inconvenienced at best, and deterred from voting at worst, due
to the loss of these accessible traditionally polling places,
urged the Secretary, so that the longstanding use of military
facilities as sites for nonpartisan Election Day activity can
continue, and signed by the Secretary of State of Minnesota in
March, 2000.
The Chairman. With that, the question is on the amendment.
Those in favor of the amendment will say aye.
Those opposed will say nay.
In the opinion of the Chair, the ayes have it and the
amendment is approved.
Are there any further amendments? Mr. Hoyer, do you have an
amendment?
Mr. Hoyer. I have two amendments that I am going to offer.
I think--and this is, as all of you know, because you have
heard about it and you are going to hear more about it--as all
of you know, I sponsored the Americans with Disabilities Act. I
like to think that I am very sensitive to the issues regarding
access to public accommodations. In my opinion, there is no
more important public accommodation in a Nation than a polling
place. It is central to our democracy. And therefore, the
Americans with Disabilities Act, in my opinion--and, frankly,
the district court in New York has held this as well--has not
been appealed because the jurisdiction said, yeah, you are
right. But I think the ADA applies fully to the election
process. We had discussions. I think the bill provides for that
as well.
But I offer two amendments which are efforts to clarify and
set forth with some degree of particularity. Obviously, we
could not agree on this or I wouldn't be offering the amendment
to be included in the bill. I am not sure it will be adopted,
because I understand the concerns about being particular as it
relates to implementation and the costs of implementation. I
understand that.
But I offer these amendments. And, Mr. Chairman, I will
offer the en bloc amendment first, which amends section
102(a)(2) of the bill regarding eligibility of States and what
they need to assure as it relates to getting punch card money.
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Mr. Hoyer. This amendment will require with a degree of
specificity that is not now in the bill, but which I think is
incorporated in the bill, assurances that in replacing those
machines--and you can read it yourself--but that each
individual who is blind, visually impaired, or has a sensory or
motor disability to vote in a private, independent, and
anonymous manner. We had testimony here from the blind in
particular. Technology does exist. And, of course, it is
audiotechnology which allows the voter to be, in effect, walked
through audibly, as opposed to visually, the voting process.
Obviously, that gives the person who is blind the opportunity
to do their voting as all the rest of us do our voting alone in
private, secret, protecting the secrecy of that ballot.
This language is designed to set forth with, again,
particularity that we are covering that and assuring that that
in fact happens.
It also amends section 112(a)(2) relating to eligibility
for funding to enhance performance of punch card voting
systems, so that we will enhance the performance of those
systems to ensure that voting systems in operation allow each
individual who is blind, visually impaired, or has a sensory or
motor disability; again, simply particularly referencing the
disabilities that we have already referred to in a number of
places under the rubric of the Americans with Disabilities Act
generally and the Voting Accessibility for the Elderly and
Handicapped Act as well.
Mr. Chairman, I am not going to read all of the amendment.
It is 4 pages in length, and you can see what it says. The
other sections that deal with money going to jurisdictions is
also affected so that when we have the election fund payment,
which is the 2.25 billion, in assuring access to voting in each
precinct in a private, independent, and anonymous manner for
all voters--again, blind, visually impaired; simply repeats it
in the various sections.
The purpose for offering the amendment--I would hope it
would be adopted, but I understand there are concerns about the
particularity as we move through this. But the purpose of
offering the amendment is to make it very clear what I think we
ought to do for those who are--who have disabilities and
therefore need to have a reasonable accommodation. Reasonable
accommodation is the language that we used in the Americans
with Disabilities Act. We also make it clear that reasonable
accommodations are in the context of undue burdens.
But it seems to me, Mr. Chairman, and you and I have
discussed this and I appreciate your sensitivity to this, and I
am sorry we couldn't get it included in the language--but that
jurisdictions throughout this country ought to make every
effort to ensure full accessibility by citizens with
disabilities to this most basic American right, the right to
vote. Thank you, Mr. Chairman.
The Chairman. Thank you. We do have a little bit--before we
go on to discussion with this--we have a little bit of
confusion on two different sheets we have. So the clerk will
report the amendment.
The Clerk. En bloc amendments to H.R. 3295 offered by Mr.
Hoyer.
Mr. Hoyer. I said I had two amendments. And what I have
done is, I have handed you the en bloc, which included the
second amendment. I want to talk about the second amendment
separately, so if I could just do the first one.
The Chairman. The clerk will report which amendment?
Mr. Hoyer. Do we delete page 4?
The Clerk. En bloc amendment to H.R. 3295 offered by Mr.
Hoyer.
Mr. Hoyer. Mr. Chairman, all it does is delete page 4. So,
just the first 3 pages.
The Chairman. Let me make a comment and then we will move
on to anybody else who would like to make a comment. I know
that this bill is an important breakthrough for the voting
rights of persons with disabilities. All new voting systems
must provide a practical and effective means for voters with
physical disabilities to cast a secret ballot. This language is
taken directly from the Ford-Carter Commission.
All States receiving Federal funds under this bill must
certify that in each precinct or polling place, there is at
least one voting system available which is fully accessible to
individuals with physical disabilities. And it also states that
use of Federal funds to purchase new machines must ensure that
at least one voting machine at each polling place in the State
will be fully accessible to individuals with physical
disabilities. The language of this bill goes actually beyond
the bipartisan compromise reached by the Ford-Carter
Commission, demonstrating broad support. So this bill goes a
step further.
Now, the proposed additional amendment, what it would
require would be new voting machines for over 200,000 precincts
that, due to available technology, still may not solve all the
problems, and modifying and relocating tens of thousands of
polling sites, often spending public money to improve private
facilities.
This, I think, would be a strain to go further with it and
would hurt the ability of local governments to actually respond
to a lot of critical needs. I think the bill took a big step.
Now I want to say, having said that, though, I fully
understand where the author, or the Ranking Member, is coming
from. In the State legislature, I worked with a lot of issues
with disabilities. I believe the bill takes a huge step above
Ford-Carter, but I understand, again, where the gentleman is
coming from to have this to the point where he would like to
get it.
I can't support the amendment because of the fact that I
think that what we have is a good step that goes above Ford-
Carter, but to go this direction, in fact, although the intent
is sincere and it is decent, would in fact economically not be
able to carry out the bill. The bill--no matter what happens
with this amendment, this bill takes probably one of the first
major steps in dealing with the issue of access in years on the
machines.
Mr. Hoyer. Mr. Chairman, I looked at this again. There
really is no reason to separate out page 4. Let's include that
page. We will just do it in one vote. And the reason I say that
is because it deals with a different section, but again it
deals with the blind, the visually impaired and those with
motor disabilities. So it is the same issue, just in a
different section of the bill.
Mr. Fattah. Will the gentleman yield? We just went through
this thing about people living on military bases. Say you were
in the military and went off to war and you lost both of your
legs, and you came back and you are discharged and you are
living in Philadelphia. Your amendment is not part of this
bill. The city of Philadelphia could have a polling place that
would require you to go down the steps or up the steps or some
other way that would make it impossible for you to go exercise
your right to vote?
Mr. Hoyer. No, sir. Not in my opinion.
Mr. Fattah. Absent your amendment?
Mr. Hoyer. My answer is no, sir. I am not sure whether this
amendment is going to pass, and I want to make my position very
clear for the record. I believe the Americans with Disabilities
Act applies to every voting precinct, every voting
jurisdiction, every voting system in America. That is my
premise. Understand, whether we pass this bill or not--whether
we never touch this--I may or may not be wrong. There has been
no Supreme Court case or circuit court case on that. That is my
premise. That is why I want to make it very clear for the
record.
I believe right today, Philadelphia has to make sure that
that veteran who lost two legs can come to his voting place,
have a fully accessible voting--physical place to come into so
that there is a ramp or an elevator, so that he can get to the
polling place and can use the technology that is being offered,
so he can vote and he can vote in private.
Mr. Fattah. Well, you do understand, if you believe that to
be the case today, that there is probably no place that I know
about that has their polling places completely accessible to
the disabled. So if your view is that the law presently
requires it and that we have massive noncompliance----
Mr. Reynolds. Will the gentleman yield? I also concur with
Mr. Hoyer, at least from a New York perspective. And I have
always felt that it was by Federal statute that the compliance
of both the spirit of the local election jurisdictions--and I
have seen inadequate sites, and as they are brought to the
attention of the election authorities, which are usually the
towns that contract with fire departments, to churches, to
schools, and other aspects, they are brought under compliance.
And I, from my days of being a local official as well as a
State legislator, believe it has been under the same pretext
that Mr. Hoyer has outlined here. Are there violations? Sure
there are. It is up to who administers local election law to
follow through on making sure there is compliance.
The Chairman. One point I would like to make on this issue.
There are two issues here in my opinion. One is what this
committee looks at dealing with access and availability to the
machines and voting. This reaches into another area, though, of
access to buildings, which I am not sure we have the ability in
this committee to look at that. Should it be looked at? Sure.
One other fear I have, too, in the 14 counties I represent,
we have--and not just me, but we have one bus that goes between
three cities. And we have probably three taxicabs in the entire
14-county area. If certain things weren't carefully looked at
and it was instituted, we probably would have to actually shut
down most of the sites and then take persons who have some form
of disability andtry to find a way to have them vote somewhere,
and that may be indirectly affected.
Mr. Fattah. Mr. Chairman, if you would just yield for one
second. I know the gentleman is a much more capable scientist
than I am. Some of this is not art. A lot of it is science.
Part of the problem with a polling location, that if you sit in
the precinct you get a larger turnout. If you put it on the
edge of the precinct, the further people are from it, the least
likely they are to vote. If you have circumstances in which
people have to go down steps or up steps, you are more likely
to break the machinery delivering it to the location and
therefore have mechanical breakdowns at the location. If you
make it inaccessible to people who are disabled, you are going
to dissuade many of them from casting their vote. And it is not
a guess about any of that, it is just factual.
And so to the degree that you want to separate the building
in the location of a precinct in which people cast their vote
in a Federal election from the casting of the vote, it is a--
you can't be intellectually coherent about it and separate
those two things. We have to have some burden on those who are
selecting these locations to do it in such a way where they
enhance the likelihood that people will vote versus dissuading
people from voting.
Mr. Hoyer. Let me say to the gentleman, I think the
gentleman from New York and I agree. First of all, my response
is--and I want to make it very clear, I believe that is the law
today. I agree. Everybody doesn't comply, and they are working
towards it. There are some costs involved. We all contemplated
that in the Americans with Disabilities Act. We gave the
transportation people a number of years to comply because of
the costs involved and the technology application. But I
believe the law currently requires that. B, this law will
reaffirm that. This amendment is simply to make more specific--
and I understand the Chairman's concerns about that, but I want
to offer the amendment because that is what I think is covered.
The Chairman. Le me just say one thing and see if someone
else has something to say, and I will rest my case on this. I
don't question the intent of this. And I understand exactly
where Mr. Fattah is coming from on this.
I want to figure out an idea here that if, in fact, we
would do this at this point in time, you do have situations
where billions and billions of dollars come into play because
right now you have polling places at a private shopping mall.
And all of a sudden, do we take money to subsidize the private
shopping mall to put a ramp up? Maybe we should say it
shouldn't be done at the private shopping mall.
If this would kick in, I am not sure, as it would be
instituted, if we could even get to an election process. So I
am not totally separating out--I understand what you are saying
about access. But I only use the district that I come from as
an example, and I want everybody to vote. And in a rural area,
you can bet if somebody can't get access, our office is going
to hear about it and they are going to do something about it.
When you look at this in a wide brush that it would paint,
it would be questionable, and maybe we shouldn't have private
places as polling places. But you get into where election
officials all of a sudden build a ramp versus getting a
machine. I think it is an issue that needs looking at. It makes
me have a hesitation of supporting this at this point in time.
Okay. Any further discussion on the amendment? The question
is on the amendment.
Those in favor of the amendment will say aye.
Those opposed will say no.
In the opinion of the Chair, the noes have it. Roll call
has been requested. The clerk will call the roll.
The Clerk. Mr. Ehlers.
[No response.]
The Clerk. Mr. Mica.
[No response.]
The Clerk. Mr. Linder.
Mr. Linder. No.
The Clerk. Mr. Doolittle.
Mr. Doolittle. No.
The Clerk. Mr. Reynolds.
Mr. Reynolds. No.
The Clerk. Mr. Hoyer.
Mr. Hoyer. Aye.
The Clerk. Mr. Fattah.
Mr. Fattah. Aye.
The Clerk. Mr. Davis.
Mr. Davis. Aye.
The Clerk. Chairman Ney.
The Chairman. No.
4 to 3. The amendment fails. The question is now on the
bill, as amended.
Those in favor will say aye.
Those opposed will say nay.
In the opinion of the Chair, the ayes have it. The clerk
will call the roll.
The Clerk. Mr. Ehlers.
Mr. Ehlers. Aye.
The Clerk. Mr. Mica.
[No response.]
The Clerk. Mr. Linder.
Mr. Linder. Aye.
The Clerk. Mr. Doolittle.
Mr. Doolittle. Aye.
The Clerk. Mr. Reynolds.
Mr. Reynolds. Aye.
The Clerk. Mr. Hoyer.
Mr. Hoyer. Aye.
The Clerk. Mr. Fattah.
Mr. Fattah. Aye.
The Clerk. Mr. Davis.
Mr. Davis. Aye.
The Clerk. Chairman Ney.
The Chairman. Aye.
8 to zero. The bill is adopted, as amended.
The Chair recognizes Mr. Linder for the purpose of offering
a motion.
Mr. Linder. Mr. Chairman, I move that H.R. 3295, as
amended, be reported favorably to the House.
The Chairman. The question is on the motion.
Those in favor say aye.
Those opposed say nay.
The clerk will call the roll.
The Clerk. Mr. Ehlers.
Mr. Ehlers. Aye.
The Clerk. Mr. Mica.
[No response.]
The Clerk. Mr. Linder.
Mr. Linder. Aye.
The Clerk. Mr. Doolittle.
Mr. Doolittle. Aye.
The Clerk. Mr. Reynolds.
Mr. Reynolds. Aye.
The Clerk. Mr. Hoyer.
Mr. Hoyer. Aye.
The Clerk. Mr. Fattah.
Mr. Fattah. Aye.
The Clerk. Mr. Davis.
Mr. Davis. Aye.
The Clerk. Chairman Ney.
The Chairman. Aye.
8 to zero, the motion is agreed to and H.R. 3295, as
amended, is reported favorably to the House.
Mr. Hoyer. Mr. Chairman, I announce that pursuant to the
provisions of clause 21 of rule 11, to seek not less than the 2
additional calendar days provided by that rule to prepare
additional views to be filed with the committee report.
The Chairman. Without objection. Motion for submitting
material to the record. I ask unanimous consent that the
Members have several legislative days for statements and
materials to be entered at the appropriate place in the record.
Without objection, the material will be so entered.
Technical and conforming changes. I ask unanimous consent
that the staff be authorized to make technical and conforming
changes on all matters considered by the committee at today's
meeting. Without objection, so ordered.
Having completed our business for today, the committee is
hereby adjourned. Thank you.
[Whereupon, at 12:40 p.m., the committee was adjourned.]