[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
MARKUP OF H.R. 811; CONSIDERATION OF FOUR ELECTION CONTESTS; AND
CONSIDERATION OF A COMMITTEE FRANKING ALLOCATION
RESOLUTION
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MEETING
before the
COMMITTEE ON HOUSE ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MEETING HELD IN WASHINGTON, DC, MAY 8, 2007
__________
Printed for the use of the Committee on House Administration
Available on the Internet:
http://www.gpoaccess.gov/congress/house/administration/index.html
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36-562 PDF WASHINGTON DC: 2006
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COMMITTEE ON HOUSE ADMINISTRATION
ROBERT A. BRADY, Pennsylvania, Chairman
ZOE LOFGREN, California VERNON J. EHLERS, Michigan,
MICHAEL E. CAPUANO, Massachusetts Ranking Minority Member
CHARLES A. GONZALEZ, Texas DANIEL E. LUNGREN, California
SUSAN A. DAVIS, California KEVIN McCARTHY, California
ARTUR DAVIS, Alabama
S. Elizabeth Birnbaum, Staff Director
Will Plaster, Minority Staff Director
CONSIDERATION OF H.R. 811; CONSIDERATION OF FOUR ELECTION CONTESTS; AND
CONSIDERATION OF A COMMITTEE FRANKING ALLOCATION RESOLUTION
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TUESDAY, MAY 8, 2007
House of Representatives,
Committee on House Administration,
Washington, DC.
The committee met, pursuant to call, at 1:05 p.m., in room
1310, Longworth House Office, Hon. Robert A. Brady (chairman of
the committee) presiding.
Present: Representatives Brady, Lofgren, Capuano, Gonzalez,
Davis of California, Davis of Alabama, Ehlers, Lungren, and
McCarthy.
Staff Present: Liz Birnbaum, Staff Director; Charles
Howell, Chief Counsel; Matt Pinkus, Professional Staff/
Parliamentarian; Tom Hicks, Election Counsel; Janelle Hu,
Election Counsel; Kristin McCowan, Chief Legislative Clerk;
Robert Henline, Staff Assistant; Fred Hay, Minority General
Counsel; Gineen Beach, Minority Counsel; and Peter Sloan,
Minority Professional Staff.
The Chairman. I would like to call the meeting to order.
Good afternoon everyone. The first order of business today
will be the consideration of H.R. 811. On May 2nd, 2007, I
discharged the Subcommittee on Elections from further
consideration of that bill pursuant to committee rule 17.
This is a bill that was very important to Chairwoman
Millender-McDonald, as she cared deeply that every citizen of
our great Nation should be able to vote, and that every vote
should be counted. I now recognize myself for an opening
statement.
Today the Committee will mark up H.R. 811, the Voter
Confidence and Increased Accessibility Act of 2007, which
amends the Help America Vote Act of 2002, or HAVA. The bill
will require electronic voting machines to produce a voter
verified paper ballot for every voter. This paper ballot would
become the ballot of record in the event of a recount or audit.
The bill would also mandate routine random audits as prescribed
by the National Institute of Standards and Technology, and
preserve and enhance the accountability requirements of HAVA.
Other requirements are also added for voting systems.
The Lofgren substitute to be offered today addresses some
of the concerns that have been raised by voting officials,
technology companies and other advocates who have previously
expressed concerns about this bill. I hope that by addressing
their concerns through this substitute, we can persuade these
interests to support this vital piece of legislation.
One of the biggest changes from the original bill is that
this substitute increases the authorized appropriations from
$300 million to $1 billion to help States pay for the
implementation of the new requirements.
I would now like to recognize Ranking Member Mr. Ehlers for
his opening statement.
Mr. Ehlers. I thank the gentleman for yielding. As I stated
last week, following the decision to postpone the markup, the
additional days between our last meeting and today's proceeding
have provided us with an opportunity to review this bill in
greater detail. Unfortunately, the additional time for review
has not changed my perception of this bill. As I have said in
the past, I continue to have deep concerns about H.R. 811.
Realizing that time is limited, I will summarize just a few of
them here. Let me emphasize that from the first time Mr. Holt
introduced this bill, I favored the concept of the bill. The
difficulty is in the details.
First the burden placed upon the States by this bill is
unnecessary, and, by all accounts, unmanageable. Over the past
several weeks, this committee has heard from Secretaries of
State, election experts, concerned citizens and other groups
urging us to reconsider passage of this bill and suggesting
many amendments.
Let me just show you what we have received. I don't know
what the majority has received. These are letters from State
and county election officials from over 35 States objecting to
the bill as it was originally introduced and are still
objecting to the bill, even in spite of the few amendments that
have been made.
They are imploring us not to pass this legislation. The
number has grown since our last meeting and the letters
continue to come in from across the Nation. These are the
people who are most familiar with our election systems, telling
us that they simply cannot effectively administer the 2008
election if Congress ignores their pleas and forces this
legislation upon them.
There are other factors. One of the chief provisions in
H.R. 811 is the voter verified paper trail. As I have stated in
the past, I am not generally opposed to the idea of a redundant
method of capturing vote totals, but I believe all avenues
should be explored to accomplish duplicate capture of this
information--not just paper.
As we all saw in the 2000 elections, in the days of hanging
and pregnant chads, paper is far from foolproof. For example
the punch card ballots are paper and that is what started this
whole reform effort because people were not happy with that. We
owe it to the American public to give thoughtful consideration
to what method of duplicate capture votes would serve them
best. I have not seen any effort by this committee to do that.
To resort back to paper without additional research into
alternative technologies that may be more reliable would be
hasty and ill-advised.
In addition, the VVPAT puts visually impaired voters at a
greater advantage than those with other types disabilities
creating an even larger disparity between segments of the
disabled community and the general public. Intellectual
property issues are also an area of concern, since this bill
prescribes that electronic voting machine vendors must reveal
propriety source codes for inspection by outside entities.
Not only will taking such steps compromise the integrity of
this system and put it at high risk of malfeasance, but taking
some drastic measures will also limit the desire of these
companies to continue to develop new technologies and improve
their existing systems.
Common sense will tell you if a businessman is required to
give away his product for free--in this case, the product being
the source code--you have also taken away his motivation to
continue enhancing that product. We would be, in effect,
cutting off our collective nose to spite our face if we took
away the desire of these vendors to continually improve their
technologies.
Let me also decry the fact that while under HAVA, we worked
very hard between the House and the Senate, with both parties
involved in constant meetings to try to work out differences.
In this case, we are rushing this bill through without adequate
consultation between the parties, without an opportunity to
hear our concerns expressed and to work with the Senate on this
bill.
Another area of concern is the funding request in the
legislation which a number of election experts have said will
be inadequate, leaving taxpayers holding the bill. We have a
duty to spend the public's money wisely. Using it to implement
legislation that the States have told us they can't comply with
in time for the next election, corporations have told us
compromises their financial health and the disabled community
has told us puts them at greater disadvantage, is reckless.
Finally, we will propose several amendments today that
address weaknesses of H.R. 811, and I appreciate the thoughtful
consideration of all the Members of this Committee when voting
on these changes. HAVA effected meaningful change that met the
shared goals of both the majority and minority parties to
improve our Nation's voting system. HAVA also worked very hard
with the voting officials from all the States. I am hopeful we
will be able to change course today and put aside partisanship
to achieve our shared objectives with this bill and many other
measures to come.
Thank you.
The Chairman. Thank you. Are there any other opening
statements?
Ms. Lofgren. Mr. Chairman.
The Chairman. Gentlelady from California Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman. I would like to thank
Congressman Rush Holt for introducing H.R. 811, the Voter
Confidence and Increased Accessibility Act of 2007. As of this
morning, H.R. 811 has 212 cosponsors, both Republicans and
Democrats. It is a bipartisan bill with bipartisan support.
Politics and political affiliation should not keep us from
making the changes needed to restore the confidence of our
citizens in the electoral process. Our election process must be
open and transparent to ensure public confidence.
Over the past few months we have held hearings in the
Election Subcommittee that I chair on issues dealing with H.R.
811. We have heard about problems faced by voters who need
machines with disability access. We have listened to State and
local election officials with very differing points of view.
Some have no problems with their current voting systems while a
majority of others find that the path to a transparent
electoral process is through a voter verifiable paper trail.
We have also heard from the guys I represent, the geek
squad, as I like to refer to them, about voting systems
software. The technology behind these voting systems needs to
be accessible to the Government entities, academic experts and
parties to ligation. That technology must also be tested and
certified by labs that are, in no way, connected to interested
parties.
We have also spent time going through the audit process and
the best ways to count ballots to ensure voter confidence. In
the hearings, we have heard many different points of view. I
will offer, at the conclusion of my remarks, an amendment in
the nature of a substitute and will discuss the merits of that
during the debate on that motion, the substitute motion. We
have received letters of support from voting rights activists
and countless individuals, and when our colleague, Mr. Ehlers,
held up his stack, I asked the staff to bring those boxes up
and put those on the table because within those boxes are
185,000 signatures in support of the whole bill, one signature
roughly for every precinct in the United States. Additionally,
20,497 signatures additionally sent in favor of this bill.
We have groups in support of H.R. 811, Common Cause, the
Lawyers Committee For Civil Rights, Vote Trust U.S.A., the
Electronic Frontier Foundation, and on and on. I ask unanimous
support to put the list in record.
We have heard the concerns of State and local election
officials and will try to address them in the substitute, but
we cannot let a flawed voting system continue. I know there are
members of this House who do not feel that we need to make
changes in our voting system.
There are Members who think the best way to go is to leave
our voting system untouched or to provide very vague guidance
for improvement. While I wish we can just ask that our voting
system be improved and it would happen, history has taught us
that this does not always work. We cannot be faced with more
Federal elections that are fundamentally flawed.
The integrity of our voting system and voter confidence
must be ensured for 2008 and beyond. And H.R. 811 is the first
step in gaining the trust of the American voters and to get
that trust back. So Mr. Chairman, I would be pleased to offer
my substitute for consideration and do offer my substitute for
H.R. 811 for consideration.
The Chairman. I thank the gentlelady. Are there any other
opening statements?
Hearing no opening statements, the Chair now calls up and
lays before the Committee H.R. 811, a bill to amend the Help
America Vote Act of 2002, to require a voter-verified permanent
paper ballot under title III of such Act, and for other
purposes.
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Ms. Lofgren. Mr. Chairman I offer my substitute as an
amendment.
The Chairman. Without objection, the first reading of the
bill will be dispensed with and without objection, the bill
will be considered as read and open to amendment at any point.
Maybe before I recognize you, we should recess to go vote and
come back and I will recognize you for your statement. Thank
you all. We are recessed until after the vote. I think we have
three votes on the floor.
[Recess.]
The Chairman. I would like to call the meeting of the
Committee on House Administration back to order. The Chair now
recognizes the gentlewoman from California. Ms. Lofgren,
Chairwoman of the Subcommittee on Elections, held three
hearings on this bill in preparation for today's markup.
Ms. Lofgren. Mr. Chairman, I am chomping at the bit to
offer my substitute to the amendment, and I do so at this time.
The Chairman. The amendment has been distributed to the
Members. Without objection, the reading of the amendment will
be dispensed with. The gentlelady from California is recognized
for five minutes in support of her amendment.
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Ms. Lofgren. My amendment is an attempt to meet the
concerns or many of the concerns that were raised by various
parties during the hearings and subsequent to them.
There is no systematic auditing in place to catch the
problems in Federal elections. The substitute language modifies
the audit section by allowing States to create their own audit
entity which is independent and nonpartisan. It also allows
State and locals to choose to use the tiered audit formula
outlined in the bill or to develop an audit that is deemed
statistically equivalent by NIST.
We have also clarified language, providing definitions for
terms such as durable paper and language explaining that
clearly readable by a voter now includes a reference to eye
glasses or corrective lenses, a suggestion made by the
minority. This is language actually in their amendment.
Recognizing that the software issue has been a key concern
for many who vote, the tech sector and the media, we have also
modified the disclosure and security requirements to make them
more practicable, and I will say that in extensive meetings
with the software community, and specifically the business
software alliance, I am advised that the business software
alliance does not oppose the language that we have in this
substitute.
Their concerns about protecting intellectual property
rights of voting systems and the like, we have modified the
disclosure language to recognize these rights, while at the
same time, allowing parties to litigation and experts access to
information necessary to ensure the integrity of the voting
system. The substitute also recognizes the need for more time,
but balances the concerns of voters by providing waivers for
some State and locals to move to paper ballots.
All paper-based systems including thermal reel to reel
systems and accessible systems that used or produced a paper
ballot in 2006 can be used until 2010 and the waiver for
thermal reel to reel is the new addition to the bill, since
last week as a result of us having time to read the minority
amendments.
Only six States will be required to replace all voting
machines by 2008. Those States would be Delaware, Georgia,
Louisiana, Maryland, South Carolina, and Tennessee. A total of
only 13 States will be required to place some of their voting
machines by 2008. The time factor is also the reason we have
made provisions to allow for States with legislatures that
don't meet every year. We recognize that these changes are not
going to be inexpensive. The substitute also includes the
authorization of $1 billion and a formula to the allocation of
these funds.
We believe that this substitute deals with all of the
issues that can be dealt with. I will note, I know that Mr.
Ehlers will be offering a substitute to the substitute with the
timeline that is not aggressive enough. A 2014 deadline
delaying the implementation beyond 2008 will just cause further
problems and distrust, and we also cannot place NIST in a
position to set standards that are impossible. The Association
For Computing Machinery, having reviewed the minority
substitute, believes their amendment has some impractical
computer security provisions as well.
So in short, I think the substitute deals with the issues
that can be dealt with. It has dealt with the technology
issues, which is why the business software alliance does not
oppose it. And I believe it will restore integrity to our
voting systems and also confidence in our electoral process. So
with that, Mr. Chairman, I move to yield back.
The Chairman. I thank the gentlelady. I recognize Mr.
Ehlers, the Ranking Member.
Mr. Ehlers. Thank you, Mr. Chairman.
I appreciate that.
The gentlewoman commented that her substitute deals with
all the questions that can be dealt with. My question is: Do
they deal with all the questions raised by election officials
as contained by this stack of letters that we have?
Ms. Lofgren. If I may, and you can see I am about out the
door because I have a roomful of people waiting for me and I
will be back to the markup--I think--in answer, if the
gentleman will yield--some of the issues cannot be dealt with
because they are offered by people who do not want change. I
believe that the country wants change. And so we have dealt
with those issues that can be dealt with while still proceeding
with change for those who do not want change, we are saying we
are sorry, but the country needs change and I yield back.
Mr. Ehlers. Reclaiming my time. I don't think we need
change for the sake of change, but we certainly need
improvement. I am willing to support and vote for improvement.
What I see in this substitute is not improvement but more
problems, more difficulties, and more than we have had in HAVA
so far. I am very concerned about that. I would be happy to sit
down with the majority and try to hammer out an agreement. That
hasn't occurred. It has all been just take it or leave it, and
so we will be offering amendments. We will offer a different
substitute.
Let me just say, I am concerned about the workability.
Certainly, we cannot meet the 2008 deadline. That is clear in
all the communications we have had from State and local people.
Given that, then, how can we improve the bill?
Let me just ask a few questions. States like Maryland and
Georgia--I don't know who is going to answer this since the
sponsor has left. But States like Maryland and Georgia have to
acquire a paper-based system under this bill because they use
paperless DREs as primary and accessible voting machines. What
voting systems could these States get that allows a blind
person to verify their vote? I don't know if there is an answer
from anyone on the minority side or not. In HAVA, we worked
very hard----
Mr. Lungren. Majority side.
Mr. Ehlers. I am sorry. I wish you wouldn't keep reminding
me of that.
The Chairman. I noticed one of your own reminded you. We
know where we are at, and we are still trying to handle it.
Mr. Ehlers. I am afraid you do. Anyone have any response to
that question?
Another question, does this bill outlaw lever systems, the
old stand-by voting machines, which, incidentally, were
instituted to get rid of the corruption that was endemic with
paper ballots.
Apparently no answer is available.
Another question, what voting systems currently exist for
purchase that meet the requirements in the bill?
The Chairman. With all due respect, the lady that held the
hearings isn't here at the moment to answer the question. She
held the hearings and I am sure she has the answers to them and
when she comes back we will have her address them.
Mr. Ehlers. In that case, I will yield back and ask my
colleagues.
The Chairman. Did you offer a substitute? I don't know
whether you offered it or you just had a comment.
Mr. Ehlers. I have a substitute to offer which is a
substitute to their substitute.
The Chairman. She offered the substitute and without
objection, the substitute amendment is considered as read and
you are recognized now. I would like to recognize Mr. Lungren
from California.
Mr. Lungren. Thank you very much, Mr. Chairman. This is an
interesting moment for me. I was not here when HAVA was passed,
but I recall watching with interest the actions of the Congress
at that time, and with all due respect, much of what the
gentlelady from California said we are about to do now and why
we have to do it now, is reminiscent of what was said when we
passed HAVA just a few years ago, and the machines we are now
concerned about are the machines that were purchased pursuant
to HAVA, and now we are coming up again with our solution.
And I would reject the notion that the election officials
who have complained about the contours of this bill in terms of
its impracticality and in terms of its uncertainty are all
those who don't wish to make any change. I have here a letter
from the American Association of People With Disabilities, the
largest cross disability membership organization in the
country. They support voting systems that are accessible,
secure, accurate and recountable. These are their words. But in
order for them to support this bill, they say it would require
delaying the implementation date until 2014. They are doing
this because they say the 2014 implementation date is realistic
based on the experience of voting equipment manufacturers and
election officials.
That is not a group that is against change. It is a group
that is against a version of a bill will make it impossible to
succeed. The election officials in California have sent a
letter talking about the impracticality of this approach. The
letter that we received on April 25th from Karen Kean, the
legislative, excuse me from Stephen Weir, the President of the
California Association of Clerks and Elected Officials,
expresses the concerns that they have.
I have letters from individual election officers in
counties from my State. They are not opposed to changes that
would make it effective, but they are very concerned about this
bill that we have.
And so I hope that we are just not going to accept at face
value that anybody who is opposed to the version of the bill
that has been presented to us or the substitute presented to us
by the gentlelady from California are against change or against
ensuring that we have access to our polling places, that we
have the ability for people to vote and not be confused about
how they vote and the ability for us to ensure the integrity of
the system.
I appreciate the fact that my friend, the gentlelady from
California, had to leave but it makes it very difficult for us
to ask questions about the version that has just been presented
to us so that we can not only talk about the general outlines
of this, but so we can ask specific questions that would govern
our introduction of several amendments to deal with the issues
that we find as we read this bill.
In short, Mr. Chairman, I am concerned about the Federal
Government now telling the States that they have screwed up
based on what we told them to do just a couple of years ago.
The HAVA bill, as I understand it, authorized $3.2 billion to
assist the States in this. And ultimately, the Congress got
around to giving them $800 million. Now we are telling them
trust us, we are going to give you a billion dollars to do this
in the time limits that we have. And I think it is certainly
realistic for them to have some concerns about this.
So, Mr. Chairman, I hope we will have ample time for debate
on the substance of what is before us and also on the
amendments that we have drawn hopefully to the substitute that
is here and take into concern the very specific questions we
have about the bill as it has been presented to us. And I thank
the chairman for the time.
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The Chairman. Thank you.
Mr. Ehlers, I think you had a substitute and I think that I
want to recognize you for five minutes to speak on your
substitute.
Mr. Ehlers. On this substitute or on my substitute?
The Chairman. Your substitute, we are on your substitute
now.
Mr. McCarthy. I was just going to ask a point of
information. I am a little confused about where we are
currently because the gentlewoman from California left. Are we
going to debate her bill are we going to recess until she comes
back?
The Chairman. She introduced her substitute, and I thought
Mr. Ehlers introduced a substitute to her substitute.
Mr. McCarthy. Did you make a motion?
Mr. Ehlers. I have not offered my substitute.
The Chairman. We are still on Lofgren substitute. I would
like to recognize Mr. Capuano.
Mr. Capuano. I want to make it clear. I voted against HAVA
when it was first proposed. I voted against it because of a lot
of things that happened since then. I thought I was right then
and in hindsight, I think I was right still. But at the same
time, we weren't allowed to offer amendments. We weren't
allowed to have discussions in a serious way. I am a former
elected official--a formal locally elected official--a former
mayor.
Mr. Ehlers. You are working on it?
Mr. Capuano. Not yet. I will leave that one alone.
But as a former mayor, we ran elections. I have hands-on
experience with picking machines, talking to election
officials, making sure that elections, both State, Federal and
local, were run appropriately. The HAVA bill did not assure me
in any level that number one, the money was going to be there;
number two, that the bad actors were going to be told given
standards; number 3 that the good actors were in any way going
to be encouraged to continue to be good actors.
So that was an easy vote for me. I agree that some of the
provisions in the bill are still not done yet. I don't have any
problem with that. I have yet to see a bill ever that is
perfect no matter how you look at it.
I do, however, believe this bill is a significant step in
the right direction, as I understand, I am relatively familiar
with most of the provisions in the substitute, I think it is
still a step forward. There are still some problems I have with
it. But again, I could sit here and talk about the negative or
the positive. And the negative, there is still some time in the
process for me to have input and everybody have input to make
it better.
At the same time, I think it is the right thing to do to
move this bill forward, continue to work on it to make it
better as we all see making it better might decide, let the
process work and get this going. Because I think everybody can
sit here today--I don't think anybody is going to argue that
the process we have now, current law we are living under now is
a good law.
HAVA had huge holes in it. And if we can't fix every one of
them, if we are not going to be able to address every single
issue that is of concern to each and every one of us, that is
not an argument not to make significant progress. So I want to
make it clear. I voted against HAVA. I am glad I voted against
HAVA. But I intend to vote for this bill. And I hope between
now and the team, it actually gets to the President's desk,
there is still some things I would like to have further
discussion on as well, and I think there will be plenty of
opportunity for all of us to do that. Thank you, Mr. Chairman.
The Chairman. Thank you. The gentleman from California Mr.
McCarthy.
Mr. McCarthy. Mr. Chairman, if I can just ask a point of
information. Is the time that is allotted right now my 5
minutes, taking my 5 minutes to ask questions about this bill?
The Chairman. You have five minutes now on the Lofgren
substitute.
Mr. McCarthy. Mr. Chairman if I may, I would like to
withhold and I would like to allow others to go before me. I
would wait until somebody comes back that can answer the
questions on the bill if I may.
The Chairman. Well, she is not here at the moment, but she
will be back. Hopefully she will come back in time and you will
have a chance to ask her questions, but right now we are going
to move forward on her substitute.
Mr. McCarthy. Mr. Chairman, I was the ranking member on the
subcommittee that dealt--we did three hearings on this and I am
very concerned. Couple of points. This bill you have mentioned,
it wasn't ready. We have got a presidential election coming up
where primaries are moved up. Florida is moving up to January.
My home State moved it up to February. And we are now going to
gut the system and change the system when we haven't finished
even going through the HAVA and finishing paying and now we
want to move a bill today that we had to postpone from last
week and we don't have the ability to debate it? I am very
concerned because in these hearings, many of you weren't able
to be here because you weren't on the subcommittee. But
election official after election official has come before us
and said, this bill is not ready.
And I think we are making a major decision here, one, with
the lack of debate; two, with the inability to answer the
questions, and I think from a perspective when we come to this
issue, we should put people before politics. This shouldn't be
a partisan issue, a partisan debate. And I don't think you
would see it on this side of the aisle.
But from my point of view, I am feeling frustrated because
this is such a serious issue that we don't have the ability to
debate it. We don't have the ability to answer the question.
And we may be able to come to a point where we find common
ground.
So with all due respect, I am just asking for the point
that I would gladly wait until she is back into the room where
maybe we could find a place that we can get to. I yield back my
time to you.
The Chairman. If we could maybe hear Mr. Ehlers'
substitute, debate that, vote on that and by that time Ms.
Lofgren should be back and we can ask her questions then.
Mr. Lungren. Is the suggestion that Mr. Ehlers' substitute
is not going to be adopted?
The Chairman. We don't know. We have to vote on that. We
will have a vote.
Mr. Ehlers. If I may reclaim the time I yielded back
earlier. I was just so surprised that the offerer of the
substitute immediately left the room making it impossible to
ask questions or get answers. I share Mr. McCarthy's
frustration on that.
My problem is, as Mr. Capuano's about HAVA, it is a
process. I would like to work together, have this be a
bipartisan bill as HAVA was. I would like to work with the
Senate, have it be a bicameral bill as HAVA was. I have already
been told by people in the Senate that this version, even
though with the substitute, is dead on arrival there, it seems
like a waste of time to work on a bill that is going to be
totally forgotten about once it reaches the Senate and they
plan to write their own.
So it is just a very confusing process. I suppose I could
offer my substitute and run out of the room to avoid anyone
asking any questions on it.
But that is a hard way to accomplish progress. So Mr.
Chairman, I understand the spot you are in. You are not
responsible for what your Members do, but it is very
disconcerting to try to have a discussion when one party leaves
the room. I will yield back.
The Chairman. We made an accommodation we will come back to
that when it comes in, if it is dead on arrival I don't know
why you are offering amendments on substitutes but we are
allowing you to do that also. Oh, his isn't dead on arrival,
only ours is dead on arrival.
I now recognize the Ranking Member for the substitute.
Mr. Ehlers. To try to move things along, Mr. Chairman, let
me just say I have an amendment at the desk.
The Chairman. Without objection, the substitute is
considered as read and the gentleman is recognized for five
minutes.
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Mr. Ehlers. I thank the gentleman for yielding. What we
have tried to do is make an honest effort to improve the bill
as submitted and the version that this committee had originally
developed, the majority of the committee had originally
developed. It directs the Election Assistance Commission, with
the help of NIST, to establish guidelines and standards for new
Federal election equipment by January 1, 2010. Everyone we have
talked to, all of the election officials, State election
officials said 2008 is simply impossible.
I take their word for that. They are the experts. So we
have tried for 2010 effective date. This provides a technology
that allows a contemporaneous, redundant and auditable trail of
votes cast recorded on such equipment which was the purpose of
the original Holt bill.
It provides a technology that allows each individual who is
eligible to vote in such an election to verify the ballot
before the individual's vote is cast into the equipment.
It provides a technology that ensures reliable security of
the equipment from tampering or improper use. It provides a
technology that ensures that individuals with disabilities who
are eligible to vote in the election can vote independently and
without assistance.
States would need to be compliant with the new guidelines
and standards as soon as they are able to do that. We estimate
by 2014, they would certainly have everything in place and
available for use. The real item that sticks in the craw of the
States is the plan for audits. States are ready to have their
own audits. They resent being told by the Federal Government
how they should handle their audits. In particular, most States
who have talked to me believe that the proposal in the bill is
worse than nothing because it interferes with a recount
process, interferes with a board of canvass review, and it does
not really accomplish the audit the way it should be
accomplished.
State security plans. States would have to submit to the
Election Assistance Commission by January 1, 2008, security
protocols as far as voting machines and administering
elections. So every State would have to prepare its security
plan.
State contingency plans. Each State must submit to the EAC
by January 1, 2008 its contingency plans for election day
emergencies or voting machine malfunctions. Plans must include
a polling place and emergency ballot protocols.
There are many other factors that make this substitute
better than the Lofgren substitute. It is supported by the
National Association of Counties, because they realize this
approach fits with the proven idea of allowing the States to
have the flexibility to meet Federal requirements in election
law. H.R. 811 directly undermines the valuable gains from HAVA
and takes us back to 19th century election systems and
procedures.
My substitute looks to use technology to improve the voting
system, not revert back to requirements and problematic paper.
It has been 5 years since the enactment of HAVA, and there are
still States that have yet to fully comply with requirements.
Until that happens, we are unable to accurately measure its
successes and shortcomings. My substitute allows for enough
time to rationally make changes to this system.
Recently, EAC commissioner Gracia Hillman testified during
an Oversight and Government Reform Subcommittee hearing that if
H.R. 811 were enacted, over 180,000 voting machines would need
to be replaced or upgraded nationwide for the 2008 elections.
Another factor there is technology being developed that would
be accessible to disabled voters and allow them to verify their
vote independently and privately. That technology is not yet
ready available or certified.
Mississippi Secretary of State Eric Clark testified there
is no way under the sun we--that is State election
administrators--can make the kind of changes that are
contemplated in H.R. 811 by next year's elections.
George Gilbert stated we are concerned that the
implementation date of 2008 would actually collapse the
election system. I could go on and on with this. But the pulp
is simply the Lofgren substitute does not solve the problems in
H.R. 811. It is a noble attempt, but it doesn't accomplish it.
I believe that my substitute does accomplish what H.R. 811
wants to accomplish, and it does so in a workable fashion. With
that, I yield back the balance of my time.
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The Chairman. I thank the gentleman. The question is on
agreeing to the Ehlers substitute amendment to the Lofgren
substitute. All of those in favor signify by saying ``aye.''
All those opposed, ``no.'' No. The noes have it.
Mr. Ehlers. I ask for a roll call.
The Chairman. The Clerk will call the roll.
The Clerk. Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Mr. Capuano.
Mr. Capuano. No.
The Clerk. Mr. Gonzalez.
Mr. Gonzalez. No.
The Clerk. Mrs. Davis of California.
Mrs. Davis of California. No.
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. No.
The Clerk. Mr. Ehlers.
Mr. Ehlers. Aye.
The Clerk. Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. McCarthy.
Mr. McCarthy. Aye.
The Clerk. Mr. Chairman.
The Chairman. No. The amendment is not agreed to. The noes
are 5, the ayes are 3. The amendment is not agreed to.
Mr. Ehlers. Not to be--Mr. Chairman. I have a number of
amendments, individual amendments to the substitute, to offer.
The Chairman. Well, right now I need to recognize the
gentleman from Texas.
Mr. Gonzalez. Thank you very much Mr. Chairman. I do have
an amendment to the substitute by Ms. Lofgren. And I ask for
unanimous consent to consider it as read.
The Chairman. Without objection. Do they have a copy of the
amendment? The gentleman from Texas is recognized for five
minutes.
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Mr. Gonzalez. I did inquire of staff because I wanted to
make sure that you had the amendments. My understanding is that
they were distributed prior to the calling of order of the
committee, but surely they are not available, let's go ahead,
these are technical conforming----
The Chairman. Technical perfecting amendment.
Mr. Gonzalez. Yes. If I could be recognized for a few
minutes, maybe my explanation will be adequate or sufficient. I
don't think that members on the minority side are going to find
anything objectionable.
This amendment makes technical and conforming changes to
ensure this bill is consistent and accurate. The first change
ensures that we are consistent in making the independent
testing agencies the escrow entities for voting software and
not the Commission.
The Commission is listed on page 17 of the bill where it
should read ``laboratory accredited under section 231.'' The
second change being made here is to include manufacturers in
reporting security standards if requested by the Commission. On
page 18, line 5, it should read ``manufacturer or appropriate
election official.''
And as I said, these are just basically conforming and
changes one amendment, two minor changes. There were
inconsistencies, we were making reference to commissions and so
on. I yield back, Mr. Chairman.
The Chairman. I thank the gentleman. Yes. Ranking Member,
Mr. Ehlers.
Mr. Ehlers. The gentleman from Texas indicated that the
minority could not find anything wrong with this. He sorely
underestimates us, but in the hope of speeding things along, I
am prepared to accept the amendment.
Mr. Gonzalez. Thank you very much.
The Chairman. The amendment then is accepted. The chairman
now would like to recognize Mr. Capuano for offering an
amendment to the Lofgren substitute.
First, we still need a vote on the Gonzalez amendment.
All those in favor, signify by saying ``aye.''
Aye.
Opposed, ``no.''
In the opinion of the Chair, the ``ayes'' have it.
So ordered, the amendment is agreed to. Mr. Capuano.
Mr. Capuano. Mr. Chairman, I have an amendment at the desk.
The Chairman. Mr. Capuano offered an amendment. Without
objection the amendment is considered as read. The gentleman
from Massachusetts is recognized for five minutes.
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Mr. Capuano. Mr. Chairman, this amendment simply allows
voters to have a choice as opposed to having election officials
have full control over the method of voting that a voter might
wish to do.
It allows people who walk into the polling place to take
whatever is offered, or to ask for a ballot that is capable of
being handmarked. To me, this is an amendment that is already
full of compromises for me. It does take into account some of
the earlier voting provisions. It exempts them. It doesn't take
effect until 2010. It does not deal with voting centers because
personally, I wasn't familiar with voting centers, but I have
no problem at all working to make sure that voting centers in
the future be excluded from this.
For all intents and purposes, it renders the emergency
provisions, the emergency provisions moot. And it does that by
allowing every voter to make a decision and therefore requiring
every polling place to have enough ballots to handle that.
Provisions are not yet stricken by this. I have no problem with
having discussions to not trying to be redundant. I don't think
redundancy helps at all. And this amendment I think is very
simple, very straightforward, and I would urge people to
support it.
I yield back.
The Chairman. Any discussion? Ranking Member, Mr. Ehlers.
Mr. Ehlers. Mr. Chairman, I have reviewed the amendment
again. I think it is an attempt to provide a clarification, and
personally I have no objection, if you wish, to call for yeas
and nays.
The Chairman. Mrs. Davis of California.
Mrs. Davis of California. Thank you, Mr. Chairman.
Initially, I was very supportive of this because I think that
at some of the hearings that we heard from people, it became
clear that there is a choice for voters. And we wanted to be
able to provide that, whether you know we used the word paper
or plastic, but essentially, to be able to allow people who are
concerned, have problems, whatever that may be to vote with
paper. I was then concerned that we might disallow people who
are voting early to do this because election centers would not
be prepared to handle that, but I think that has been clarified
in the amendment.
I think that it really does allow some choice. And I think
over time, some of us will settle out because people will
either choose to use the paper or they will have the confidence
in whatever machines it is that they are using and they will be
able to do what we are really doing here--focusing on the voter
and encouraging an election system that has the confidence of
people that are getting to the polls, so I appreciate that, Mr.
Chairman, and I support it.
The Chairman. I thank the lady. Any other discussion? All
those in favor of the Capuano amendment signify by saying
``aye.''
Aye.
Any opposed? So ordered, the amendment is agreed to.
We will move on to any other amendments?
Mr. Ehlers. Yes. Mr. Chairman, I have a whole series of
amendments here. The first one is labeled Ehlers Number 1,
requiring paper as the official ballot. What this amendment
does is allow States to decide what the official ballot of
record should be.
I think one of the flaws in the original bill, H.R. 811, as
we have heard testimony from various governmental units, is
that it insists that the only ballot of record is the paper
ballot. I think there have been substantial cases showing that
paper, in and of itself, is not necessarily more reliable than
other methods of voting. I think it should be up to the
election officials to have the capability and the freedom to
decide, based on the record of what they see and the results of
the voting, to decide which of the ballot--which of the
redundant system they are using is the more reliable in terms
of recounting the election.
So this certainly clarifies that issue, removes the
absolute nature of the statement. As I said before, the 2000
presidential recount in Florida proved that paper ballots were
not the answer and that was the genesis of HAVA. The main
reason the Nation moved from paper ballots to mechanical voting
machines was because of rampant fraud associated with paper
ballots and the problems with discerning voter intent. Paper
ballots can be--and frequently were--lost, stolen, or damaged.
Entire ballot boxes were lost, stolen or stuffed with
counterfeit ballots. That was the origin of the development of
the old lever-style voting machines to get away from the
problems of paper. I think we should let the election officials
decide which is the appropriate record to use when recounting
in a particular election based on the state of the ballots, the
state of the equipment and so forth. I urge the adoption of
this amendment.
The Chairman. I thank the gentleman. Without objection, the
amendment is considered as read. Any other discussion on the
amendment? Yes. The gentleman from Alabama.
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Mr. Davis of Alabama. Thank you Mr. Chairman. Mr. Ehlers, I
would pose this question to you and then yield you your time to
answer it. I assume when you crafted your amendment, you may
have possibly expected that the Capuano amendment would not be
successful. It has now been successful. It just passed by voice
vote.
Can you reconcile your amendment with the Capuano
amendment? It seems like from my standpoint, if the Capuano
amendment gives the voter a choice that that is substantially
undercut if the States could then come back and say we are
going to ignore all paper ballots in adjudicating a recount,
but I yield to you to answer that.
Mr. Ehlers. I will be happy to yield. I don't see a
conflict here at all because it gives the local election
officials the choice of which to use for the record. If for
example they have allowed some people to use VVPAT, paper
ballots, and there is no alternative, obviously they have to
depend on those paper ballots for those individuals as the vote
for the record. But the intent of the bill is to make certain
there are two indicators of the intent of the elector so that
we can determine precisely what the elector meant.
Mr. Davis of Alabama. Well, reclaiming my time. I am
searching for the actual text of your amendment. If you have an
extra copy of it, I would appreciate being given it versus just
the executive summary of it. But if I am understanding the
summary, it suggests that it would be up to a State to decide.
But in the event of a recount, the State could choose something
other than paper ballots. If I understand Mr. Capuano's
amendment, the goal is to give a voter the option of making
sure there is a paper trail. The only relevance of giving a
voter that option would be that there was, in the event of a
recount or in the event of a dispute, the availability of
something more reliable than machines.
So it may be that we simply disagree about your amendment,
but it would seem to me given Mr. Capuano's amendment now being
included in the bill that you would take away or you would
undercut the voter flexibility Mr. Capuano creates by allowing
the States to in fact ignore those paper ballots.
Mr. Ehlers. No. They would not have that option. The intent
here is that when there are two official records, whether it is
a computer and a paper trail or whether it is some other
alternative dual redundant record, which could be a computer
with an additional server located alongside which verifies the
votes, if there are two choices, let the State choose. If there
is only one choice, if it is just the paper ballots that Mr.
Capuano refers, that of course has to be the only option that
the State or the local government can pick.
Mr. Davis of Alabama. In the interest of time, I will make
this just my last observation. It would seem as a practical
matter that if consistent with Mr. Capuano's amendment that
there would always be in every jurisdiction a chunk of ballots
that were paper ballots that would exist, perhaps in some there
would be the overwhelming majority of the ballots that were
cast. So as a practical matter, If I understand the point the
ranking member is making, if there were an election recount or
an election audit, it may create a very significant practical
problem if the State were to decide to use one mode of
verification if a significant number of ballots were cast.
Mr. Ehlers. The State could never exclude ballots that were
officially cast if that is the only ballot that was made. They
could never do that.
Mr. Davis of Alabama. Okay. I will yield back, Mr.
Chairman.
The Chairman. Thank you. Yes, the lady from California.
Ms. Lofgren. I just wanted to--I am sorry that I had to
briefly depart for a previously scheduled meeting. I did want
to address the issue that I understand Mr. Ehlers raised in my
absence, which is what machines are readily available now that
meet the standards in the substitute. And that would be
official optical scans and ballot marking devices, and I also
understand that the question has been raised whether levers,
the machines with the levers would be essentially outlawed
under the substitute. And the answer to that is yes, they would
be outlawed. However, only New York uses the levers, and the
State of New York has itself outlawed the levers as of
September of this year. H.R. 811--actually the substitute would
actually not outlaw the levers until November of 2008. So I
don't think New York would actually even be impacted since they
have taken a step in advance of this. I think that the
substitute does really nothing to advance our cause of
transparency and voter recounts.
And you know years ago, I was visiting in Silicon Valley,
and all the techies are very concerned, at least in the valley,
who have talked to me, that we take a step such as is
envisioned in the bill and in the substitute. And I remember
one of the scientists told me--I said, well, mistakes can be
made under any system, and that is true. I mean there can be
mistakes on paper ballots. There can be mistakes on optical
scans. There can be mistakes on machines. I mean, nothing is
perfect, and we all know that. And he argued back to me, yes,
but the mistakes can't all be skewed to one side as they could
be in a voting machine. And that is really what underlies this
issue. You can't hack a paper ballot. And you can hack a voting
machine, and you need to have a paper ballot at least to
prevent that from happening, and I think to do anything less is
a mistake, and I don't question the gentleman's commitment or
his good will. I just think that he is mistaken, and I thank
the Chairman.
Mr. Ehlers. Would the gentlewoman yield?
The Chairman. We are going to get back to you. We have
agreed to hold open any debate on your substitute until you got
back. But right now we are on Mr. Ehlers' amendment No. 1. If
we could do this, get through the amendments, and as I agreed
to, we could go back and have our discussion with the
substitute. I believe Mr. Ehlers' amendment No. 1 is up for----
Mr. Gonzalez. Addressing Mr. Ehlers'--I guess--amendment
No. 1. Mr. Ehlers, could you give me an example of what you are
talking about here where there would be an election by the
election official and determine what would be the official
ballot? What constitutes the official ballot for the purpose of
an audit or a recount, a real life experience that we could
anticipate occurring?
Mr. Ehlers. Will the gentleman yield?
Mr. Gonzalez. I am sorry. I yield to you. Yes, sir.
Mr. Ehlers. I thank you for yielding. This is not an
amendment that is just coming out of the blue. This is in
response to the requirement in H.R. 811 that in the case of two
extremes the paper ballot is the ballot of record, period. The
local community has no choice, the State has no choice and this
amendment is simply to make it clear in the case of a dual
record. The State and the locality upon examination of the two
records can decide which is the most accurate and use that as
the official recount. It is not a new concept. It is simply
taking away the requirement that it has to be paper, that you
can't consider the voting machine as----
Mr. Gonzalez. Reclaiming my time, I guess what I am trying
to get at is, if you could give me an example of where you have
two competing ballots that either could be recognized as the
official ballot. Are we talking something that is
electronically computed? Or something that we have that is
actually a--obviously the paper ballot? The reason that I pose
that question is, if you are going to give an option to the
election officials to basically defeat the very purpose of what
we are doing, and that is a paper trail, but not just a paper
trail but something that can be examined, quantified as being
more reliable than that which cannot be, which would be
something that would be a nonpaper ballot. See what I am
getting at? I am just saying, I would like to know of an
example that you could provide me because maybe I am missing
the whole point of your amendment.
Mr. McCarthy. If the gentleman would yield.
Mr. Gonzalez. And I would like to yield to Mr. Ehlers since
it is his amendment.
Mr. Ehlers. Okay. Let me first respond, and then I hope you
will also recognize Mr. McCarthy. You are assuming, as the bill
does, that the paper trail is automatically the better record.
Now we heard testimony before this committee from Cuyahoga
County, Ohio that this is not true, that they did run an
election where there was a paper ballot as well as the machine.
The machine turned out to be far more accurate than the paper
ballot. Now I am not saying this would be true in every case. I
am just saying in a case where that is true and it is evident,
isn't it foolish of us to say, I don't care if the machine is
proven to be more accurate, why do you exclude--why do you
require us to use a paper ballot?
So I am just giving the local election officials a choice.
This is based on my strong feeling. Having served in local
government, State government and Federal Government, I have
discovered that not all wisdom resides in the Congress, and I
think we ought to recognize the ability of the local election--
--
Mr. Gonzalez. Reclaiming my time, I know that it is
probably almost expired. But I think just an important point--
obviously I was just informed in that particular aspect or that
particular county, the paper roll jammed and you had certain
problems. I think we start from the basic premise. And I know
that we have a fundamental difference about it that we are
insistent on the paper ballot. I think what you are doing is
you are allowing an election official to frustrate the very
purpose of what we are attempting to accomplish and, further,
find ways and manners of making sure that the paper ballot does
in fact establish something that is very clear and
quantifiable. That is my fear and my concern or that you
actually put what we are trying to do here in jeopardy by--and
I understand what you are saying, it is just the good faith of
the election officials or so. But I can actually see where
there would be a heck of a lot more mischief with that than if
we say let's emphasize a quality paper ballot, a paper trail,
because that is what brings us here today and this particular
piece of legislation, and at this time I would yield back
because I know----
Ms. Lofgren. Would the gentleman yield?
Mr. Gonzalez. I would yield to Ms. Lofgren.
Ms. Lofgren. I would note to cite Cuyahoga County is pretty
amazing since it is my understanding the election officials
there were removed by the State because of irregularities and
misconduct in the conduct of elections, and that has been
widely reported in the press and I would yield back.
Mr. Gonzalez. I yield back to the chairman. Thank you, Mr.
Chairman.
The Chairman. Mr. McCarthy.
Mr. McCarthy. If I could ask my questions, I guess.
Referring to my friend from the other side asking for a
specific example, during the hearings we did have an elected
official from Ohio. It was a race this time, and it was close.
I believe it was Deborah Pryce's race. It was a large county.
It met all the criteria, all the matrix that you would want to
see. And it went through with the State provision to have the
recount. The interesting part that they brought up, they had
electronic machine and they had the paper right there. When
they went back and did the checking because that is what they
have to do, the machine counted correctly. The paper--because
you are using individuals there who have been trained but who
aren't there all the time--jammed. So in this bill what Mr.
Ehlers is saying and why he is offering the substitute, we are
predetermining which one we look at. Even though in that case
if this bill was to pass, the paper would be the correct answer
even though we all knew it was wrong.
So all Mr. Ehlers is saying with the substitute, don't
predetermine the winner in the process. Allow the elected
official who is elected by the body or appointed to actually
weigh that issue so they have the option. And I understand your
argument from there, but in this case we would have legislated
what was right and what was wrong even though in that case he
pointed out it was wrong, and I can see human error, just like
Ms. Lofgren talked about earlier. The more people touch it, the
greater a chance that there is an error. When you are feeding
these in, you can't have error. And double checking, doing the
parallel test, they found the machine had counted correctly.
The paper had counted wrong so they were having the
verification on both----
Mr. Gonzalez. Would the gentleman yield? Thank you very
much. My understanding is you had a reel and it jammed and you
had those problems. I believe and I could be wrong, and I will
defer to Ms. Lofgren and to Mr. Ehlers who are very
knowledgeable about every aspect of this particular piece of
legislation, my understanding is that we are going to have
paper ballots available for those that are going to be
requesting them. So I don't see that situation that we now
allude to as ever repeating itself. Because if they had a
problem with the printout, with the roll, the reel or whatever,
we are actually going to have available for use in those
circumstances a printed ballot. It is my understanding that we
are going to have something that would address that particular
situation. So that if anything, we have now built into this
whole voting process a more careful and deliberate way of
arriving at a paper ballot that we can rely on so that we do
avoid the problem that you just set out. I just think that
really defeats the whole purpose of what we are trying to
accomplish here with paper trail, paper ballot and reliability.
Mr. McCarthy. If I may yield back my time. The only thing I
would state here is this is probably the problem where we are
putting the cart before the horse. If we would debate the bill,
maybe this would be a little clearer understanding, because in
that instance you wouldn't have known the paper had jammed.
Even though you do have paper and you have the paper ballot but
the person was able then to go to the choice, what happens is
only when the election was close did they go back, trigger an
automatic evaluation. The election was close. That is when they
realized that the paper count was not correct, but this
legislation, if the answer is the way I read it, it says the
paper is always right. The machine can never be right. And I
would rather--instead of predetermining who the winner is, I
would rather give that power to the elected officials who do
this every day. And they could see from that instance, and that
is in essence what the substitute, and let me yield my time
to----
Mr. Ehlers. If the gentleman would yield here, let me just
follow that up. First of all, machines don't always function
perfectly. That is true of computers, and it is true of paper.
I am not arguing that we make the computer the automatic one. I
am saying just allow the election officials based on the
records to decide which one is right. I think it is absurd to
say well, the paper always has to be right. We already have
examples where it is wrong. It is also so argued that the
computer has to be right. But I don't understand the underlying
assumption here that somehow the computer is always wrong.
Look, we sent out millions of Social Security checks every
year. Our paychecks are run off by a computer. Right? I never
even see it. It automatically goes into my bank account. Now I
have a check because I can check it because--I wish I had more
checks--but I could check my bank account and see that it was
actually deposited correctly. The point is simply we trust
computers for so many aspects of our lives. I think it is
insane to have something that says the computer is
automatically wrong.
Mr. Davis of Alabama. Would the gentleman yield for one
point?
Mr. Ehlers. It is not my time.
Mr. Davis of Alabama. Would you yield for one quick
observation?
Mr. McCarthy. Yes.
Mr. Davis of Alabama. Ultimately Mr. Gonzalez and I are
making the same point. So I won't spend a lot more time on
this, but I think, Mr. McCarthy, what you said perhaps
unintentionally clarifies this debate. This side of the aisle,
the supporters of this bill want to create a paper trail in
every instance because this side of the aisle has made the
judgment that that is, all things being equal, the best, most
provable, most empirical way of verifying whether a vote has
been cast. The purpose of this amendment is to depart from that
intent and to say to local election officials, you can choose a
different mode, and that just seems crystal clear to me. That
is your position and we have ours. But I don't think it is
accurate to say that this is consistent with the intent to move
toward a paper verification. It is not. It would allow the
opposite of paper verification.
Mr. McCarthy. If I may yield back just for clarification.
The Chairman. I am not sure if there is time left.
Mr. McCarthy. Just to be short, maybe we are not clear
because that is not our intention. All we are saying is you
could have a paper trail and you can have a computer trail. In
essence what you are saying, paper trail always, even in the
instance when it jams, and this person got a hundred votes and
the paper trail says----
Ms. Lofgren. Would the gentleman yield?
The Chairman. The gentleman has no more time.
Ms. Lofgren. Mr. Chairman.
The Chairman. We have nine amendments. We could do this
back and forth forever.
Mr. Lungren. Mr. Chairman.
The Chairman. Yes, the gentleman from California.
Mr. Lungren. Mr. Chairman, I would just like to strike the
last word. I come to this somewhat fresh.
The Chairman. You have 5 minutes.
Mr. Lungren. And I have been one that had been concerned
when I come up to certain machines and, you know, I push my
finger on it and I hope it registers it correctly. And
initially I thought paper verification, man, that is the way to
go. And maybe this is the essence of the difference here. Isn't
what we really want is to have a redundancy, a redundant system
that is independently verifiable so that you can compare one
against the other to see if in fact there was the accuracy of
the machine involved, not just go back and check the machine
and its internal operations? That is what I understand what we
are trying to do here. And we are, it seems to me, making the
judgment that the only way to do that is by a paper trail, and
I don't know if that is because we doubt technology or we think
that the constituents need--the voters need to have something
in their hands to prove to them that in fact that is the best
way to verify.
Now, I am one of those who loves to have a check in my
hand, loves to have a piece of paper in my hand. But at the
same time, I recognize the world is changing and that we are
going to paperless programs. And I just wonder whether it
really does make sense. And this is not partisan on my part. I
am trying to assure you. I want a redundancy. But does it make
sense for us to predetermine the redundancy has to be paper?
And I guess my question is a general one but then also a
specific one. I understand--and maybe the gentlelady from
California can correct me--but I understand in your substitute
that you give a waiver to reel-to-reel paper, reel-to-reel
machines for 2008?
Ms. Lofgren. That is correct.
Mr. Lungren. And that is because----
Ms. Lofgren. That is because some of the States, some of
the localities have complained that their State legislatures
might not be able to act in time, and we want to accommodate
that, but since the gentleman has yielded----
Mr. Lungren. And I yield to the gentlelady.
Ms. Lofgren. I think it is important to be clear about what
the underlying bill says and what it doesn't say. It says----
Mr. Lungren. It would be very helpful.
Ms. Lofgren [continuing]. In section 2(b)(1) that if there
is an inconsistency between any electronic vote tallies and the
vote tallies determined by counting by hand that the paper
ballots shall prevail, as has been discussed. It goes on to say
if it is demonstrated by clear and convincing evidence, as
determined in accordance with the applicable standards in the
jurisdiction involved in any recount, audit or contest of the
result of the election, that paper ballots have been
compromised by damage or mischief or otherwise and that a
sufficient number of ballots have been so compromised that the
result of the election should be changed, the determination of
the appropriate remedy with respect to the election shall be
made in accordance with the applicable State law. And so there
is room for using commonsense in the case where the reel-to-
reel, for example, jams, as we saw in one of our hearings. I
would note also that in Ohio there was no parallel testing--I
just wanted to correct the record on that--in the election
contest previously referenced. The difference here I think is--
and I don't want to talk about Florida 13 specifically because
that is a separate committee that we belong to. But we do know
that looking at that issue, there is nothing to recount. There
is no paper ballots to recount. And that is the greatest
argument I can find----
Mr. Lungren. Reclaiming my time, the gentlelady has just
directed us to in the substitute actually goes to what the
amendment offered by Mr. Ehlers is, and so therefore the
gentlelady accepts the argument but is suggesting that you have
taken care of that in your base substitute. That is, at times
if there is proof that the paper ballot method is somehow
insufficient, they can go to something else, is that correct?
Ms. Lofgren. Not exactly.
Mr. Lungren. Oh.
Ms. Lofgren. If it is demonstrated by clear and convincing
evidence that the paper ballots have been compromised and that
a sufficient number of the ballots have been so compromised
that the results would have been changed, the determination of
the remedy shall be made in accordance with applicable State
law.
The Chairman. The gentleman's time is up. Anyone else?
Question on the Ehlers amendment? All those in favor, signify
by saying ``aye.'' Any opposed? The noes have it. The amendment
fails.
Mr. Lungren. Mr. Chairman, I have an amendment.
Mr. Ehlers. Could I have a recorded vote on that?
The Chairman. The gentleman asks for a recorded vote.
Recorded vote on the Ehlers amendment No. 1.
The Clerk will call the roll.
The Clerk. Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Mr. Capuano.
Mr. Capuano. No.
The Clerk. Mr. Gonzalez.
Mr. Gonzalez. No.
The Clerk. Mrs. Davis of California.
Mrs. Davis of California. No.
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. No.
The Clerk. Mr. Ehlers.
Mr. Ehlers. Yes.
The Clerk. Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. McCarthy.
Mr. McCarthy. Aye.
The Clerk. Mr. Chairman.
The Chairman. No.
The noes are 6, the yeas are 3. The amendment fails.
Mr. Lungren. Mr. Chairman, I have an amendment, Lungren No.
1.
The Chairman. Lungren No. 1. Without objection, the
amendment is considered read. I will now recognize the
gentleman for five minutes.
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[GRAPHIC] [TIFF OMITTED] 36562.138
Mr. Lungren. I thank the Chairman. This amendment I think--
well, I hope is somewhat noncontroversial. It attempts to try
and deal with a particular problem that occurred to me, and
this amendment tries to deal with that problem. It would allow
the States that currently use the direct recording electronic
systems with the voter-verified paper audit trail that have
thermal paper to continue to use these voting machines in
Federal elections. It is my understanding that 27 States
currently use DREs with reel-to-reel voter-verified paper audit
trails. This bill would require that States junk these new
voting machines after the 2008 election. I could find no
compelling reason to require the States to replace these
machines because DREs with voter-verified paper audit trails
that use reel-to-reel thermal paper still provide the paper
record that we are talking about. It seems to me this is the
kind of thing that the election officials were complaining
about. This would be a huge waste of taxpayer dollars to
replace something that is working and that provides the paper
auditable trail that is desired by the majority in this bill.
State and local election administrators have advised members of
the committee that an alternative to reel-to-reel voter-
verified paper audit trails cannot be developed, tested,
certified and implemented for the 2008 elections and there is
some question, according to them, whether it would be available
for the 2010 elections.
So this amendment would simply allow States to use these
reel-to-reel voter-verified paper audit trails for the life of
the machine. And as I understand it, that could be 10 to 15
years or until the State decides to purchase new equipment.
This does not change the underlying premise of the bill, as I
understand, brought to us by the majority. It does have the
paper trail there established. It would save money even though
I know we are promising that we are going to send the money
down there. I think we ought to be realistic, there is always
cost involved. And if this serves the purpose of what we were
talking about, I would hope that we could adopt this amendment.
It does nothing to undercut the premise of the majority. It
does nothing to undercut the idea of a paper trail. It allows
the use of the machines that, as I understand it, have not
proven to be problematic to this point. And that is the purpose
of my amendment, and I think it is fairly simple and
straightforward.
And with that, I would yield back the balance of my time.
The Chairman. I would like to thank the gentleman. The
gentlelady from California, Ms. Lofgren.
Ms. Lofgren. Mr. Chairman, I oppose the amendment. As
referenced earlier by, I believe it was Mr. McCarthy, the reel-
to-reel are not optimal technology. I mean, they can jam. They
are not perfect. And the provision in the substitute that
permits their use through the 2008 election is a compromise,
really in deference to the county and State officials who said
that they could not meet the 2008 deadline. But I think to
ignore the problems that we are aware of forever would be a
mistake, and that is why the substitute gives a waiver but
actually says these machines need to have a durable paper trail
that is readable and countable in the future. And I think that
to adopt the gentleman's amendment, although I am sure it is
well intentioned, would be a mistake, would undermine the bill
and the progress that we hope to make with it, which is why I
oppose it, and I thank the gentleman for recognizing me.
The Chairman. Thank the lady. Any other discussion? The
question is on the amendment? All those in favor of the Lungren
amendment No. 1 signify by saying ``aye.'' Any opposed?
Mr. Lungren. Recorded vote, please, Mr. Chairman.
The Chairman. Recorded vote is requested. Would the Clerk
please call the roll?
The Clerk. Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Mr. Capuano.
Mr. Capuano. No.
The Clerk. Mr. Gonzalez.
Mr. Gonzalez. No.
The Clerk. Mrs. Davis of California.
Mrs. Davis of California. No.
The Clerk. Mr. Davis of Alabama.
[No response.]
The Clerk. Mr. Ehlers.
Mr. Ehlers. Yes.
The Clerk. Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. McCarthy.
Mr. McCarthy. Aye.
The Clerk. Mr. Chairman.
The Chairman. No.
The noes are 5, the yeas are 3. The amendment fails.
Mr. McCarthy. Mr. Chairman, I have an amendment at the
desk.
The Chairman. The Chair recognizes Mr. McCarthy.
Mr. McCarthy. This amendment----
The Chairman. I am sorry. Without objection, the amendment
is considered as read, and you are recognized for five minutes.
Which number is this?
Mr. McCarthy. No. 1.
The Chairman. No. 1. Thank you.
[The information follows:]
[GRAPHIC] [TIFF OMITTED] 36562.139
[GRAPHIC] [TIFF OMITTED] 36562.140
Mr. McCarthy. It is my understanding that they have all
been numbered by name, hopefully everybody has it.
It is pretty straightforward. It allows States to continue
to use the DRE for early voting and advanced voting. As many of
us know, a lot of the States have moved up their voting such as
Nevada and others to help when it comes to lines, to help in
the process. And this allows them to use the DREs because they
are necessary in urban areas to serve voters from anywhere
within the county who wish to vote early at the voting
locations. In some of these areas you can have 1,100 different
ballot styles. And from this perspective, I believe it will
help the individuals, it will shorten the lines, and one thing
we found, a significant ballot printing and delivery problems
for the optical scanners occurred in 2008, 2004, 2006. And as
everybody moves their election up faster, with the presidential
coming and the primary, I just think this gives an opportunity
to mend into your bill to actually give some flexibility at the
same time.
I yield back my time.
The Chairman. I thank the gentleman. Any discussion? The
question is on the amendment? All those in favor signify by
saying ``aye''. Any opposed? The noes have it.
Mr. McCarthy. I would ask for a roll call vote.
The Chairman. Roll call is requested. Would the Clerk
please call the roll?
The Clerk. Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Mr. Capuano.
Mr. Capuano. No.
The Clerk. Mr. Gonzalez.
[No response.]
The Clerk. Mrs. Davis of California.
Mrs. Davis of California. No.
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. No.
The Clerk. Mr. Ehlers.
Mr. Ehlers. Aye.
The Clerk. Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. McCarthy.
Mr. McCarthy. Aye.
The Clerk. Mr. Chairman.
The Chairman. No.
The noes are 5, the yeas are 3. The amendment fails.
Mr. Ehlers. Mr. Chairman, I have an amendment at the desk.
The Chairman. Without objection, the amendment is
considered as read and the Ranking Member is recognized for
five minutes.
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[GRAPHIC] [TIFF OMITTED] 36562.141
[GRAPHIC] [TIFF OMITTED] 36562.142
[GRAPHIC] [TIFF OMITTED] 36562.143
Mr. Ehlers. Thank you, Mr. Chairman. This amendment is very
straightforward. It strikes the audit provisions, which have
been the most disturbing and difficult for the States and local
governments to deal with. It strikes all of the other
provisions, but it does not get rid of auditing. It allows the
States to develop their own plan for auditing Federal
elections. States will develop plans and get approval by their
respective State auditors or equivalents and then submit their
plan to the EAC. Election administrators are the ones who have
to administer the changes and many of them have testified and
sent letters testifying to the burdens and unintended
consequences of the audit requirements in H.R. 811. I have
alluded to that earlier in terms of the election officials who
have talked to me. So the proposed audits will greatly
interfere with the actions of the canvassers in deciding the
final totals for local and State elections. With the testimony
that we have received on this, this is not a good way to audit.
They have better ways of doing it. We are happy to work with
their State auditors to improve it if it needs improvement and
submit their plan to the EAC.
I ask for approval of my audit provision change.
The Chairman. I thank the gentleman. The gentlelady from
California, Ms. Lofgren.
Ms. Lofgren. Mr. Chairman, I oppose the amendment, as the
substitute actually deals with some of the issues raised by
State officials relative to the audit. In the substitute the
audit board has been removed but has been replaced with a
requirement that the entity chosen by the State to conduct the
audit satisfy the requirements of independence as set forth in
the GAO's government accounting standards and also provides for
an alternative, that States could instead use auditing
procedures established by NIST, and I know the gentleman has
great respect for, as do I. So I believe, however, that
independent random audits are very important, and certainly in
talking to local government officials in California they concur
that a randomized audit is absolutely essential.
As the gentleman knows, I was a local government official
for more years than I have been in Congress. I was on a board
of supervisors in Santa Clara County for 14 years with
responsibility for elections. We supervised and funded the
registrar of voters in that fourth largest county in the State.
And I would never, as a local official, have said that a
randomized audit that was independent was somehow to be
resisted.
So I think the amendment undercuts the bill, an important
element of the bill. We have in the substitute change
provisions of it to accommodate what we think are legitimate
issues raised by State officials so that we do not unduly
constrain the development of audits, but we need to have
independence and I think the gentleman's amendment would
undercut that.
And I thank the chairman for yielding to me.
The Chairman. Any other discussion on the Ehlers amendment
No. 2? The question is on the amendment? All those in favor of
the amendment signify by saying ``aye.'' Any opposed signify by
saying ``no.'' The amendment fails. We ask for a recorded vote
with a roll. Would the Clerk please call the roll?
The Clerk. Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Mr. Capuano.
Mr. Capuano. No.
The Clerk. Mr. Gonzalez.
[No response.]
The Clerk. Mrs. Davis of California.
Mrs. Davis of California. No.
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. No.
The Clerk. Mr. Ehlers.
Mr. Ehlers. Aye.
The Clerk. Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. McCarthy.
Mr. McCarthy. Aye.
The Clerk. Mr. Chairman.
The Chairman. No.
The noes are 5, the yeas are 3. The amendment fails.
Mr. Lungren. Mr. Chairman, I have Lungren No. 2, amendment
No. 2 at the desk.
The Chairman. The Chair recognizes the gentleman for five
minutes. Without objection, the amendment is considered as
read, Lungren No. 2.
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[GRAPHIC] [TIFF OMITTED] 36562.144
[GRAPHIC] [TIFF OMITTED] 36562.145
Mr. Lungren. Thank you very much, Mr. Chairman. This
amendment deals with the question of disabled accessibility. As
I mentioned earlier, when we had general debate the American
Association of People With Disabilities, the Nation's largest
cross-disability membership organization, has expressed their
concerns about the impracticality of the implementation of this
bill. While they take pains to laud the impact of HAVA, HAVA's
requirement that all polling places have at least one
accessible voting machine by 2006 because it has, in their
words, resulted in significant improvements in voting access
since the 2002 elections, they go on to say that they fear that
the Nation might move backwards on accessible voting
technology, not because that is the intent of the author of
this bill or the substitute but rather because of the
impracticality in implementing this bill in this way.
That is why I offer this amendment. This amendment would
simply allow States to continue to use the DREs that meet the
accessibility requirements under current HAVA law. This
guarantees that the progress achieved under that law for the
disabled community, as referenced in the letter from the
President and CEO of AAPD would continue. Testimony before the
committee indicates there still exists access problems with
paper ballot and paper trails. Dr. Diane golden, disability
access and technology witness, stated the following, quote,
there are two access problems that we have still got in
existing products related to print. It is not going to work to
have an accessible electronic vote record or ballot and an
inaccessible paper one. You can just see the problem with that.
It is clearly lack of equal access. And quote, when you add
paper into the process, we certainly don't have equipment on
the market readily available that delivers all of those access
features when a paper ballot is involved.
Congressman Holt stated that, one, our legislation requires
that there be a voter-verified paper ballot. Now what goes
along with that we really don't specify. There is some
accessibility issues that, you know, purely a paper system
cannot help the voter with disabilities along with the process.
And that is an admission by Congressman Holt that we have a
problem here.
So it just seems to me that if we are going to require
voter-verified paper audit trails, we should first ensure that
it has accessibility standards for all disabled voters before
requiring the States to purchase technology that does not now
exist. I believe a paper option can still be offered for those
who are disabled and want a paper backup and prefer to have
assistance in the voting booth.
I understand the intent of the author of the underlying
bill and the gentlelady from California with the substitute to
try and somehow come to a reasonable compromise on this. I just
fear that under the current terms of the bill that doesn't make
it. I would just ask that there be serious consideration of my
amendment so that we don't have an unintended consequence as a
result of the terms of the bill that we pass.
And with that, I would yield back the balance of my time.
The Chairman. I thank the gentleman. Is there any other
discussion on the amendment? The lady from California, Ms.
Lofgren.
Ms. Lofgren. I oppose the amendment. And as mentioned
earlier, there is a grandfather clause through the next
election for those systems that have reel-to-reel. On page 7 of
the substitute, starting at line six, there is also a provision
requiring that the use of at least one voting system equipped
for individuals with disabilities at each polling place that
allows a voter to privately and to independently verify the
individual durable paper ballot and ensures that the entire
process is equipped for individuals with disabilities.
I will note that we worked very closely with the disability
community in crafting the substitute, and I believe that it
does address their very important issues, and the amendment is
unnecessary and also redundant, and therefore I would oppose
it.
The Chairman. Any other discussion? The question is on the
amendment? All those in favor signify by saying ``aye.'' Those
against, ``no.'' The noes have it.
Mr. Lungren. Recorded vote, please.
The Chairman. A recorded vote is requested. Would the Clerk
please call the roll?
The Clerk. Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Mr. Capuano.
Mr. Capuano. No.
The Clerk. Mr. Gonzalez.
[No response.]
The Clerk. Mrs. Davis of California.
Mrs. Davis of California. No.
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. No.
The Clerk. Mr. Ehlers.
Mr. Ehlers. Aye.
The Clerk. Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. McCarthy.
Mr. McCarthy. Aye.
The Clerk. Mr. Chairman.
The Chairman. No.
The noes are 5, the yeas are 3. The amendment fails.
Mr. Lungren. Mr. Chairman, I have Lungren amendment 3 at
the desk.
The Chairman. The Chair recognizes Mr. Lungren with
amendment No. 3 at the desk. Without objection, the amendment
is considered as read and I recognize the gentleman for five
minutes.
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[GRAPHIC] [TIFF OMITTED] 36562.146
Mr. Lungren. Thank you, Mr. Chairman. This amendment goes
to a very controversial part of this bill. It goes to the
question of source code and the availability of the source code
to a large number of potential parties. This amendment would
strike the provisions in the bill relating to election
dedicated software and source code disclosures.
As I read the bill, and I believe this is still true in the
underlying substitute, it allows access of voting machine
software to parties of a rather large universe. As I understand
it, all someone would have to do is file a lawsuit, they would
then be considered a party and they would have access to this
information under the terms of this law. As I understand it, it
would be both pre-election and post-election. As I understand
it, there would be a requirement for disclosure--nondisclosure
agreement to someone who successfully sought this information.
However, I have looked in vain to find any provision in the
bill before us that has an enforcement mechanism.
Now, I don't know, but I would think that we would want to
protect intellectual property to a greater extent than that. A
nondisclosure requirement that has no backup in terms of a
penalty to someone who did disclose, either administratively or
any other way, is not the way we normally look at important
issues of intellectual property. As a matter of fact, we know
we have international disputes with any number of our trading
partners, and if we were to visit Taiwan or visit the People's
Republic and they were to tell us, look, we are going to
protect your intellectual property by requiring nondisclosure
agreements under certain circumstances but there is no
enforcement mechanism, I think we would be very, very upset.
These are crucial issues out there. I understand the
importance of being able to check to make sure that machines
have not been in any way tampered with, but I think this goes
far too far. There are inherent security concerns and
reservations about allowing a broad spectrum of parties, some
of whom may not have real interests in the source code, to view
sensitive and security-related voting machine equipment and
software. And maybe I am mistaken on this, but I understand
this is allowed pre-election as well as post-election under the
terms of the bill. If we are concerned about securing
something, maybe the last thing you want is individuals having
access to these things prior to an election where they might be
able to do testing to find out what the vulnerabilities are. I
know that is not the intent of the gentlelady from California,
but I have a concern that that could be the result, and
particularly when we have no enforcement mechanisms in the
underlying proposition before us.
So my amendment would strike the provision in the bill
relating to the election dedicated software and source code
disclosures, and I would hope to get support for my amendment.
The Chairman. Is there any discussion on the amendment?
Ms. Lofgren. Mr. Chairman.
The Chairman. The lady from California, Ms. Lofgren.
Ms. Lofgren. I oppose the amendment, and let me tell you
why. I think there is no section of the substitute that I spent
more personal hours on than this section, and to strike it
would mean that no party or voter to--no party to litigation
would ever be able to have access to voting system technology
and might never be able to find out whether votes were
miscounted. Now the language in the substitute is crafted to
provide protection needed to get access to the information
while at the same time respecting the rights of third-party
vendors and off-the-shelf software. The provision relating to
nondisclosure agreements is one that I think provides the
opportunity for penalty for disclosure when it comes to
election specific software.
I would note that the section which begins on page 11 of
the substitute and extends into page 16 of the substitute is
one that was crafted with the input of technology companies,
many of whom are in my congressional district in Silicon
Valley, and that the language is not opposed by the Business
Software Alliance. I am not going to pretend that any software
company wants any disclosure. I understand they don't. But
there is also a recognition that when there is election-
specific software there is going to be a need in certain cases
to have access to that software so that one can be assured as
to what happened, and that is why we put these protections in
place. I think that the provision is a balanced one that
achieves its end, and I think the amendment simply striking it
would lead us in the dark and would be a huge mistake, and I
yield back. I thank the chairman for recognizing me.
The Chairman. I would like to recognize the gentleman from
California, Mr. McCarthy.
Mr. McCarthy. Thank you, Mr. Chairman. I have a couple of
questions for Mr. Lungren and then I would like to yield him
some time as well. In your amendment you say strike it because
you raised the issue about no penalty, that anybody could just
go in and file a lawsuit that day and then get--I mean I could
file a personal lawsuit currently as the bill is written?
Mr. Lungren. If the gentleman would yield.
Mr. McCarthy. I will yield.
Mr. Lungren. As I understand it, the definition of the bill
is someone who has an interest--a party of interest would be
anyone who filed a lawsuit involved in this issue, whether or
not they succeeded in the lawsuit, whether or not the lawsuit
was thrown out later on, as I read the bill.
Mr. McCarthy. And yours would--because there is no penalty
as well. If someone goes in and signs that paperwork, I filed
the lawsuit, I signed the paperwork, I get the source code. Is
there any penalty if I do----
Mr. Lungren. Well, if the gentleman would yield. And the
gentlelady from California can correct me if I am wrong. But I
read through the bill and could not find, or referring to my
bill, the staff did a good job of reading through the bill--I
could not find a reference to the penalty attached even
administratively, civilly, criminally, any otherwise.
Ms. Lofgren. Would the gentleman yield?
Mr. Lungren. Yes.
Ms. Lofgren. On that point, if you would look, I direct
your attention to line 24 on page 13 on the nondisclosure
agreements. The NDAs, what we decided would be prudent would be
not to try to write the NDAs for the software companies. Let
the companies write their own NDAs. Ordinarily--I have signed
plenty of them--there are penalty provisions for disclosure
that would be included in the NDA itself. So it was really in
deference to the variety of companies. But there are limits
that are put into the bill on what the NDA could contain, for
example----
Mr. McCarthy. If I may reclaim my time.
Ms. Lofgren. Certainly.
Mr. McCarthy. So if I recall correctly here, what you are
saying is we are giving it up to the companies to put out any
penalty they want, and how would it be reinforced then, through
the legal course there?
Mr. Lungren. If the gentleman would yield.
Mr. McCarthy. Yes.
Mr. Lungren. I understand what the gentlelady is saying, it
is a nondisclosure agreement to be reached between the
manufacturer or the possessor of the intellectual property and
the person asking for it. But the fact that we don't specify
any type of enforcement leaves that hanging out there. I would
suggest that if one reads this bill, the impetus is to get this
document or this information source code and other information
out and for a company to stand there and say, look, we don't
believe the nondisclosure agreement is sufficient to protect
us, they will not be in a very strong position to do this. And
I mean I would just say if the gentlelady is telling me that
the high tech industry has signed off on this, this is news to
me. And if that is the case, maybe on the Judiciary Committee
we ought to understand they are not as concerned about source
code protection as they have told us they are. And that is what
I frankly find surprising, that somehow I am being told that
they don't oppose it or they agree with it or they accept it.
Ms. Lofgren. Would the gentleman yield?
Mr. Lungren. Before that, I would just say if I were their
lawyer and I saw this legislation and I saw that I was required
by the Federal Government to give this information up pursuant
to a nondisclosure agreement and there are no elements of
protection for me that is specified there, that this is the
penalty if you fail to do this, I would recommend to my client
that they get out of the business.
Ms. Lofgren. Would the gentleman----
Mr. McCarthy. Reclaiming my time. If I could just ask you
this question, it might be yielding the answer you want. You
said the industry doesn't oppose it. Does the industry support
it, this provision of the bill?
Ms. Lofgren. If I may----
Mr. McCarthy. Yes.
Ms. Lofgren. On page 15, line 1, the NDA is ``silent as to
damages,'' and on line 19, ``provides the agreement shall be
governed by the trade secret laws of the applicable State.''
I am on the Intellectual Property Subcommittee of the
Judiciary Committee and have been on that subcommittee for the
past 12 years. I think this is very much in keeping with our
tradition of protecting intellectual property. I would note
also that this relates only to election dedicated voting system
technology, which is--we tried to define it and finally
realized it is already defined. And so we simply reference the
definition under current law.
In terms of support, I will say that if you go to any
industry and say, would you like to have a provision such as
this? I mean they didn't ask for this. But in multiple meetings
and really I don't know how many hours but many, many, we came
to the point where the Business Software Alliance said that
they do not oppose this.
Mr. McCarthy. They do not oppose it but they do not support
it?
Ms. Lofgren. I don't want to say they support it yet. I do
not know. But they do not oppose the language that we have in
this amendment.
Mr. McCarthy. Can I ask another question? You bringing up
the subcommittee you serve on of the Judiciary, would this bill
need to go through that committee as well?
The Chairman. We are getting close to time. I will let you
go a little bit longer, but not much.
Ms. Lofgren. I hope not.
Mr. McCarthy. Yield back my time.
The Chairman. Yes, sir. Mr. Ehlers.
Mr. Ehlers. Thank you, Mr. Chairman. This is the part that
bothers me the most. It just seems very strange to me. I don't
know if the Business Software Alliance or Microsoft, et al.,
have taken leave of their senses. Considering the battles we
have had just obtaining access to the source code thus far, but
it has been obtained when it is appropriate. I am not even sure
why we need this provision, but certainly I think it does
incredible damage to the intellectual property laws of the
country. I hate to think of how the Chinese might interpret
this and say, well, this can apply to our case as well and it
is okay if we violate the intellectual property laws. I think
it is very strange, and I don't know if they were brow beaten
into this or what. I think it is a very, very dangerous
precedent for the high tech industry, especially the computing
industry. Let me just ask if Mr. Lungren would like more time.
Mr. Lungren. If the gentleman would yield. Look, I think we
want some of the best in the business to be involved in this. I
think we want not just one person who is sitting out there to
look at this. This is specialized software. I would hope that
we would have--we would at least not set up a scenario where
companies are afraid to get in this because their intellectual
property can be so easily compromised. I think you have to look
at that side of this. It is one of the purposes of intellectual
property. It is to allow the great competition of ideas, but
people knowing they have some value in that property, that is
one of the toughest concepts we have in developing countries is
to have them understand the concept of intellectual property as
a thing, as a right, as something that you protect, as a
property interest. It is not immediately ascertainable. After
developing countries understand how they actually promote
themselves and their industry with the protection of these
rights, they all of a sudden start protecting intellectual
property that comes from other countries because they hope to
have theirs protected. And that is why if we hope to have some
of the best companies in the world giving us the best, most
reliable machines, it seems to me we should be very careful
about that. That is why I offered the amendment.
Mr. Ehlers. Just reclaiming my time, I have a question for
you, Mr. Lungren. You alluded earlier that this might stir the
interest of the Judiciary Committee. Would you anticipate that
this might trigger a referral of this bill to the Judiciary
Committee?
Mr. Lungren. If I were in the majority I guess I could give
you an answer. I would--well, it is intellectual property. It
goes about enforcement, but traditionally at least it is
something that we would look at in the Judiciary Committee and
past chairmen have jealously guarded that, and Mr. Conyers is
not known to be a wallflower.
Ms. Lofgren. Would the gentleman yield on that point?
Mr. Ehlers. Yes, I will yield.
Ms. Lofgren. I am advised the bill does not change any
underlying intellectual property laws, and I am advised by
someone who has checked with the Parliamentarian that it would
not require a referral. And I thank the gentleman for yielding.
Mr. Ehlers. Let me just conclude by saying that I still
have serious concerns about this. I think it is of great
importance to the computer industry and that we should at least
be very worried with that provision. With that, I yield back.
The Chairman. Thank you. Any other discussion? The question
is on Lungren amendment No. 3. All those in favor signify by
saying ``aye.'' Any opposed say ``no.'' The noes have it.
Mr. Lungren. Mr. Chairman, could I have a recorded vote on
that, please?
The Chairman. Recorded vote is requested. Would the Clerk
please call the roll?
The Clerk. Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Mr. Capuano.
Mr. Capuano. No.
The Clerk. Mr. Gonzalez.
Mr. Gonzalez. No.
The Clerk. Mrs. Davis of California.
Mrs. Davis of California. No.
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. No.
The Clerk. Mr. Ehlers.
Mr. Ehlers. Yes.
The Clerk. Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. McCarthy.
Mr. McCarthy. Aye.
The Clerk. Mr. Chairman.
The Chairman. No.
The noes are 6, the ayes are 3. The amendment fails.
Mr. McCarthy. Mr. Chairman, I have an amendment at the
desk, McCarthy Number 2.
The Chairman. McCarthy Number 2, without objection, the
amendment is considered as read and the gentleman is recognized
for five minutes.
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Mr. McCarthy. I thank you, Mr. Chairman. This amendment
comes directly from our hearings. The one thing we talked about
in the name of this bill is voter confidence. We are talking
about auditing the election, having the ability to know that
the election, the outcome, is what took place. And that means
auditing it all the way through.
And in our hearings, one of the individuals talked about
from all of the different stages. And it dawned on me at that
moment, at that time, that we are auditing those votes that
have been voted, but we have never put the confidence back into
the people who were allowed to vote, do we ever look at, do
they have the right to vote?
The outcome may--the votes may tabulate, be correct, of
those who voted but we never looked at, for the confidence part
of that. So what this amendment does, effective 2010, voters
will be required to provide a photo ID much like every week
when I get on the airplane, I show my ID. If I were to going to
a store and purchase cigarettes or alcohol I show an ID.
Effective 2010, voters who arrive at polling places without the
required ID will be given a provisional ballot. And there will
be 48 hours to present a qualifying ID. Effective 2010, people
voting by mail must include a photocopy of a photo ID. The bill
states to set up a program to distribute the IDs and provide
them at no cost to the individuals. Funds are authorized to
reimburse the states for the costs of providing free IDs. I
believe IDs will preserve and bring integrity back to
elections, and actually go to the heart of what this bill says,
the confidence in the voters. If you are going to audit an
election, but you are never going to audit whether the
individuals could vote or not, how do you know you have the
right outcome?
And I will tell you there is broad support for this. It is
really common sense. In a recent NBC Wall Street Journal poll,
demonstrated that 81 percent of the people surveyed expressed
supporting requiring IDs at the polls. The bipartisan Carter-
Baker Commission on Federal Election Reforms have recommended
that we require IDs at the polls. I really believe this goes to
the heart of it, that if we are to move this bill, the first
thing we should do is the ID portion of it.
And the bell rang, so I give back the balance of my time.
Mr. Davis of Alabama. Mr. Chairman, can I weigh in on that
or do you want to recess?
The Chairman. Sure. The Chair recognizes Mr. Davis from
Alabama.
Mr. Davis of Alabama. I have a little bit of experience on
this, Mr. McCarthy, being from Alabama and the south, a number
of these southern States have these photo ID provisions. They
sound seductive for the reasons that you outline, but there is
a big practical problem with them. The folks in our society who
do not have a photo ID tend to have the following
characteristics, they tend to be very old, they tend to be very
poor, and they tend to be blacks or Hispanics.
And there are all kinds of reasons those four eventualities
occur, but that is just the empirical fact. So if you impose
any kind of voter ID, the result is that you strike at groups
of vulnerable people who often participate at lower levels than
they should in the political process.
And there is another core problem, and by the way, that is
what a number of courts have found. As you know, there have
been a number of challenges to voter ID provisions on Voter
Rights Act grounds and courts have tended to find that there
are significant implications with respect to the Voters Act.
There is another issue we are talking about legislation
that aims at practical wrongs that exist. I am on the Judiciary
Committee, which I served on with Ms. Lofgren and Mr. Lungren,
we had an individual from the Department of Justice and I
remember posing a query to that individual about the number of
prosecutions that have happened in this country involving
individuals who walk into a voting booth who claim to be
someone that they are not. And the number is negligible. The
number of elections that we have had in this country where
there has been some taint or some evidence of corruption based
on people walking in claiming to be John Jones when they are
not John Jones is just a negligible number.
On the other hand we have had, as we know from the Florida
race, as we know from Ohio, as we know from the Florida
presidential and congressional races in 2001 and 2006, as we
know, are the Ohio race in 2004, there have been, whenever we
think of the outcomes of those races, all kinds of questions
raised around other aspects of the electoral process. So while
this legislation sounds good, as a practical matter it aims at
a problem that doesn't exist and it singles out a vulnerable
class of voters. So I would yield to Ms. Lofgren.
Ms. Lofgren. Thank you for yielding. And I would just add,
this is something that I think the Election Subcommittee is
going to take a look at later in the year because there has
been so much discussion about it. But I will say this, people
often say, well, you have to show ID to buy a beer, but you
know a beer is not a constitutional right. We know that
substantial numbers of American citizens do not actually have a
photo ID. And in fact, we had hearings--and Mr. Ehlers was
present at one of the hearings I attended, I believe, in New
Mexico. We heard from the Navajo Nation--and it is about
250,000 Americans. And indeed, they are the first Americans.
And we were told by their leadership that they basically don't
have photo IDs, and when we were having that hearing, the
gentleman, who was a wonderful representative of his tribe
said, you know, don't ask us for birth certificates because we
don't have them. And don't ask us for utility bills because we
don't have those either.
So essentially, a photo ID imposition for voting would
essentially say to a quarter million Navajos, our first
Americans, you are not allowed to vote.
I want to say also that the other studies we have heard
about in the committee seem to indicate that there would be an
enormously disproportionate adverse impact on people who are
poor and people who are minorities. In fact, one of the studies
that we learned about last Congress was in Wisconsin--I was
stunned to see this--that a huge percentage, over somewhere in
the neighborhood of half--of the African American young men
between the ages of 19 and 26 don't have a driver's license and
do not have a photo ID and cannot get one. I would note also
that the Eagleton studies that was sponsored by the Election
Assistance Commission, I would say rather cynically, suppressed
and even distorted--and that is another thing we are going to
look into later this year--indicated that there would be a
disproportionate adverse impact on minorities with this voter
ID impact, and it also pointed out there is virtually no
evidence that there is fraudulent voting, and the Justice
Department has shown that also through their lack of
prosecutions.
I think this is a very poor amendment. It would have a
very, I am not sure not intended, but adverse civil rights
impact and should be vigorously opposed. And I know the time of
the gentleman has expired.
The Chairman. I would like to recognize Mr. Capuano from
Massachusetts hopefully for a very brief comment so we can vote
on this amendment and then go and come back again.
Mr. Lungren. Mr. Chairman, I would wish to discuss it too.
The Chairman. Go ahead.
Mr. Capuano. Mr. Chairman, I won't vote for this amendment.
I don't care how long any subcommittee looks at this issue. I
won't vote to require Americans to carry IDs unless there is a
need for that requirement. It is basic civil liberties. I kind
of feel like the roles have been reversed here. It used to be
that the right didn't like the Federal Government telling
people to carry IDs, apparently now it is the left. I am the
left and I don't want it.
And this proposal, first of all, is I haven't had anything
to say on the other amendments. They are all on point. They all
have some reasonable purpose to say it. This is a whole other
issue. This is basic civil liberties. Have all the hearings you
want. There is no way that I would ever vote to require
Americans to carry an ID and show it to anybody unless there is
some clear and unequivocal need and purpose for the society.
There is no allegations by anybody that I have heard of
widespread voter fraud. People already have the ability if
there is some known reason to ask somebody if you are really
who you say you are. You can already do it in a voting place.
And this is an incredibly slippery slope. What is next? Showing
an ID and requiring certain information to buy a gun? Oh no, we
can't do that, can't never do that. But this is okay.
This is ridiculous. This goes to the basis of civil
liberties here in America. The last time they tried this to
require National IDs was in Nazi Germany in World War II.
Didn't work there and not going to work here.
The Chairman. Maybe we should recess and come back and I
will recognize you when we come back. We will have a brief
recess we have three votes on the floor and then we will
return. Thank you.
[Recess.]
Mr. Chairman. I would like to call our Committee back to
order. I believe we were on McCarthy Number 2. I think that Mr.
Lungren had his light on and he agreed to hold off until we got
back, so I now recognize Mr. Lungren.
Mr. Lungren. Thank you, Mr. Chairman. Mr. Chairman I
understand that some people get very exercised over this but
frankly to suggest that this amendment is somehow anti civil
rights is, I think, a little extreme.
Let's remember what the Carter-Baker Commission said.
The Carter-Baker Commission said to make sure that a person
arriving at a polling site is the same one who is named on the
list we propose a uniform system of voter ID based on the real
ID card or an equivalent for people without a driver's license.
The Commission noted specifically that there is likely to be
less discrimination against minorities if there is a uniform ID
than if poll workers can apply multiple standards.
In fact, Andrew Young, former U.N. Ambassador and mayor of
Atlanta, supports the photo ID requirement.
Now the suggestion is that somehow we will have or
discriminate against certain peoples, that somehow it will
diminish or depress voter turnout. Well, voters in nearly 100
democracies around the world use a photo ID card without fear
of infringement on their rights. That is the language of the
Commission.
Let's take our closest country to the south. In Mexico,
strict anti fraud regulations in voting have actually increased
voter turnout. Three Mexican presidential elections since the
photo ID reforms were implemented in 1991, 68 percent of
eligible voters voted compared with only 59 percent in the
three elections prior to the rules change.
The Mexican ID program is far more than what we suggest
here. It includes multiple security features, a hologram,
special fluorescent ink, a bar code, special codes and magnetic
strip. And it appears that where people have greater confidence
in the election process there is greater rather than lesser
participation.
One of the big issues now on the front pages of the
newspapers, on television every night in my last town hall
people talked about this, it is identity theft. People are
concerned about people using their identity to gain some sort
of advantage, to gain some sort of benefit, in some cases to
raid their personal bank account.
Here we are talking about the essence of democracy, which
is, that people have the right to vote, but your vote and my
vote is diminished if someone who doesn't have that right to
vote votes. And I don't understand why, when we are concerned
about the integrity of the system we are so afraid to deal with
this issue and come up with arguments that suggest it is going
to be oppressive against certain individuals.
As I say, Mexico has this card system. Canada has a system
in which you get a ticket in the mail after registering and you
have to bring that to the voting place. In the Netherlands you
need a passport or driver's license to be presented. In Brazil,
you need a picture ID to be presented.
And for the life of me, I don't understand when we are
trying to make sure that the person who is voting is the person
who is supposed to vote, that we somehow say that is an
infringement on their rights.
Now, the suggestion has been made that we don't have a
whole lot of examples of this. I recall when we tried to
investigate it in California when I was attorney general, the
lack of proof is there because you have no means of showing at
the poll that someone is someone other than what they who they
say to be. And if you suggest that someone stand outside with a
sign that says only if you are a citizen can you vote, that can
be viewed as voter intimidation whereas, if, in fact, you
require everybody to present a photo ID at the time that they
vote, everybody is treated the same. Every single one of us is
treated the same.
And so at a time and place where we are worried about
identity theft, why aren't we worried about identity theft for
that most precious of gifts that you have as a citizen of the
United States, the gift and the responsibility to vote? And so,
I just don't understand when we are so concerned about a paper
trail making sure that it properly records votes, we are not
concerned in the first instance with who it is that is voting.
And so I wish that we would not view this as an effort to
diminish voter participation that somehow it is aimed at one
group or another. If that were true, Mexico, last time I
checked, is not as wealthy a country as we are, maybe I am
wrong on that--has far greater poverty than we have, and yet,
they have greater participation in voting since they have had
this identification and one--and perhaps for one great reason,
it instilled a greater confidence in the integrity of their
system than they had before. Is it perfect? Of course it is not
perfect. But is it better because of this? Yes, it is. And I
would hope that we would seriously look at the gentleman's
amendment and adopt it.
The Chairman. Thank the gentleman. Mrs. Davis of
California.
Mrs. Davis of California. Thank you, Mr. Chairman. I was
hoping if I could have the author address the issue of absentee
voting and how you see that. I see the language that you have
here. How would you--how do you see that in terms of absentee
voting?
Mr. McCarthy. You have the ability to send in a photocopy.
Libraries have copy machines, others you are providing when I
did it by mail, absentee voting, I have it there for a number
of days, I can go to a Kinko's, to other places, just photocopy
my ID and send it in.
Mrs. Davis of California. And how do we verify that is you?
Mr. McCarthy. When you sign--when you vote for absentee you
sign on it. If I worked for this committee and we had one
contested race. When you turn it in you sign on the card itself
and they--when they get it into the election office, they
identify your signature based upon your voter registration.
Mrs. Davis of California. I am familiar how they do that. I
have checked those. But I am also trying to get at the whole
issue of do we know it is that person?
Mr. McCarthy. We will know more than we know today.
Mrs. Davis of California. I have to sign my name alongside
my registration at the precinct itself and so for many people
obviously they have been voting at the same precinct for years,
people know them, they don't have to have an ID.
Mr. McCarthy. You don't have to have an ID today.
Mrs. Davis of California. You don't have to have an ID, but
people know you are signing your name and they have that
verification. But if you are voting in absentee voting--I
happen to be very supportive of absentee voting--but I also
think that in some ways, we set up kind of an unequal system
here because and it is possible for someone to Xerox somebody
else's license, of course, if they are choosing to, if somebody
wants to engage in fraud----
Mr. McCarthy. If the gentlelady would yield.
Mrs. Davis of California. We can't prove that.
Mr. McCarthy. When you sign, when you go in and vote in
person, never does the election department check that signature
if it was really you who voted. When you vote by absentee
before that vote is counted, they check that signature. So the
absentee vote is actually checked more than the person going
forward. So when you send in that absentee vote and photocopy
ID it is checked whether that signature is correct before they
open the ballot.
Inside when you go to vote, you sign the book. But that is
never checked unless there is a problem. So you have greater
checks and balance in absentee in vote by mail than you do any
other way.
Mrs. Davis of California. In your system then when you are
asking for people to go to the trouble, if you will, of trying
to find a way to Xerox whether it is a license or any other
kind of ID that that would really be an important----
Mr. McCarthy. I understand the debate from the other side,
but I do believe we live in a society where we show our IDs
many times. We all just used our ID just to vote. I believe
this is capable of doing. And the name of this bill is the
ability that we are going to bring confidence back. We are
willing to shift a whole system that we just went through with
HAVA on how we want these machines because we want voter
confidence. We should have 100 percent voter confidence. We
should make sure those who are allowed to vote like 100
countries do this, but we don't ask, but you can't get on an
airplane, you can't rent a car, you can't shop, you can't cash
a check.
Mr. Davis of Alabama. Let me, right now, pose this in forms
of questions to Mr. McCarthy and Mr. Lungren, certainly won't
take very long to do it.
Mr. Lungren, you were making the assertion that you didn't
understand the argument or you weren't very sympathetic to the
argument on the other side that this had the effect of diluting
minority voter rights as you were probably aware, the Eleventh
Circuit Court of Appeals, which is an overwhelmingly Republican
circuit, ruled several years ago that the Georgia voter ID was
unconstitutional exactly because it created a dilution of black
voting participation in Georgia.
So I would ask you to address that.
Mr. McCarthy, if I can pose a question to you, if an
individual walks into a polling place with an intent to commit
fraud, obviously that person has at least to know the name of
the voters list. You have to walk in and say your name that is
on the list obviously. If someone has an nefarious intent to do
that, I think we would all agree the easiest thing in the
world, if you doubt this, talk to a 16-year-old, the easiest
thing in the world is to get a fake ID.
So if someone is nefarious enough to decide I want to
pretend to be John Jones and go through a list of voters and
just distribute the names, it would seem to me that person is
almost certainly nefarious enough to engage in fake IDs. But I
would yield to both of you to address it either of those
points.
Mr. McCarthy. Well, I will answer first and I will yield
some time to the former attorney general of California. The
only thing I would say if today you can walk in and say you are
somebody and you never can be questioned on it or show an ID,
that is much easier than going to the task of creating a fake
ID and trying to show it to vote. I just think it is another
checks and balances that protects us in the long run. And I
yield the balance of my time.
The Chairman. It is not your time to yield. I just want to
let you know that I am paying attention.
Mr. Lungren. As understand it, the Eleventh circuit struck
down the Georgia ID law because of the fact that it did not
provide dollars--money for indigents for ID cards. And I
understand, this amendment does provide that benefit so that we
would get around that number one.
Number two, look, I don't want the gentleman to think I am
not sensitive to the concern he expresses. And I believe that
Andrew young is concerned about what the gentleman expresses
and came to the conclusion that this would not discriminate
against any particular group if we applied it across the board.
And so the gentleman from California's amendment allows
this, for the provision of funds to reimburse the States for
the cost of providing such free IDs to the indigent and I
believe that will take care of the gentleman's problem.
If I could just also mention one thing, when I was in
Congress, I think it was 1981, we had a situation in which a
Member of Congress voted on a resolution that I had on the
floor which dealt with the disciplining of a Member here who
had been convicted of 29 felony counts.
The Member was registered as voting with his electronic
card, but at the time we voted he was in Chicago conducting a
hearing for the committee he then chaired.
It ended up that for whatever reason, apparently some
Members thought it was okay to vote other Members cards when
they weren't here. The gentleman first made excuses, finally
took ill and never did return to the Congress deciding not to
vote and it brought to me that even as honorable a body as
this--which I think is an honorable body, and I will defend the
House of Representatives with attacks by a lot of people--we
had a situation in which identity theft or identity fraud can
take place. And we had to take action in this House to make it
clear that that is a violation of the rules and that Member
would have been expelled had he not left of his own accord.
I am just saying that if we found that situation here,
ought we not to extend that same sort of concern about someone
voting who doesn't have the right to vote?
Mr. Davis of Alabama. Let me reclaim and I will wrap this
up because I know the chairman wants this moved to an end, but
I do want to correct one factual point my friend from
California made. If I understand your amendment correctly, you
put a provision in place for individuals to obtain a government
ID, in effect, for voting, but you still got to obtain some
proof of who you are before you get the government ID. For
example, a birth certificate would be one obvious way to get
it. Birth certificates aren't free, they cost money. Passport,
passports cost money, naturalization papers if you don't have
them, cost money. So in other words, it is not quite as simple
as you make it sound.
To obtain the special ID for voter purposes, you would have
to have an ID for which you would have to pay money
potentially, and that is squarely what the 11th circuit ruled
in Georgia was impermissible. They ruled what was impermissible
was imposing a fee or requiring a fee before one could exercise
the right to vote.
If the identification process pushes one in a direction
toward obtaining fee based documents, I would argue that would
still run afoul.
The Chairman. Time is running out. The only people who have
time left are myself and the Ranking Member. Mr. Ehlers, go
right ahead.
Mr. Ehlers. I thank the gentleman. First of all,
unfortunately Mr. Capuano is not here, but I want to reassure
them that I am not a Nazi. I also want to inform everyone that
you do need an ID to buy a gun and I won't comment on his other
statements.
I am really appreciative of the fact that we don't have any
more votes, so we can go for several hours yet without
interruption.
The Chairman. I doubt that if I am still here.
Mr. Ehlers. Here is where the strong gavel comes out. Let
me just make a couple of points. The gentleman from California,
the one to my right, commented that when Mexico adopted a voter
ID, the turnout went up. That is not the only case. Arizona in
a referendum last year adopted a photo ID. Their voter turnout
went up. So those who say it will go down when you have a voter
ID are just dead wrong. The evidence is there.
Another factor is that last year this committee approved
and the House passed precisely what we are talking about here,
a voter ID. We--Mr. Davis, for your information on that made
certain that anyone who is indigent not only get the ID paid
for, but they get the backup paper records paid for and any
legal requirements that were necessary paid for. So no one
would be discriminated against on the basis of income or access
or anything else.
And as I said it passed the House. Everyone seemed to think
it was a good idea.
I think that this is a very good idea, something that
should be required. I am amazed it hasn't been required before.
The arguments against it are very weak. I just defeated all
of them. Everyone on our side here has indicated that they are
not valid arguments. It is something that we simply should
require for something as valuable as voting. Now, this clearly
was not necessary in the town where I was born, because the
voting officials knew everyone in the town. And so when you
went in to vote they would say, hi Sam, good to see you again,
et cetera. In today's world, with the tremendous growth in
population, plus the tremendous mobility of our Nation moving
from one place to another, I think it is perfectly reasonable
and logical and, in fact, necessary that we require a voter ID
from voters if we are required to use a photo ID for so many
other activities, cashing a check, buying certain goods, buying
a gun, I can go on and on. What is so awfully bad about
requiring a voter to carry an ID to indicate that he or she is
who he or she says they are? I think it is a very, very good
idea, and I strongly support this amendment.
I yield back.
The Chairman. The question is on the----
Ms. Lofgren. Mr. Chairman I will be very brief.
The Chairman. I heard that before no matter how long it
takes.
Ms. Lofgren. The Eagleton study, which the EAC sponsored
pointed out that in States where voters were required to
present ID documents, African Americans were 5.7 percent less
likely to vote, Hispanics 10 percent less likely to vote, Asian
Americans 8.5 percent less likely to vote, and the Brendan
Center said as many as 13 million United States citizens--or 7
percent--do not have ready access to citizenship documents.
I would like to make the letter from the Leadership
Conference on Civil Rights a part of our record, but they
strongly urge us to oppose this requirement and say that voter
ID requirements represent one of the most serious threats in
decades to our efforts to ensure the right of every eligible
American and that is from Wade Henderson, the leader on civil
rights in America.
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Ms. Lofgren. I would just like to note that last year when
we adopted this provision, not everyone did agree. I certainly
did not agree. And we have ample evidence that these measures
do have a discriminatory impact on low income Americans and on
various ethnicities. And I hope that we can take a broader look
at this in the Election Subcommittee later in the year, and I
thank the chairman for his indulgence in letting me say that
and I yield back.
The Chairman. Thank you. The question is on the amendment.
All those in favor, signify by saying ``aye.''
Any opposed signify by saying, ``no.''
No.
The noes appear to have it.
Mr. McCarthy. I would ask for a roll call.
The Chairman. Clerk please call the roll.
The Clerk. Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Mr. Capuano.
Mr. Capuano. No.
The Clerk. Mr. Gonzalez.
Mr. Gonzalez. No.
The Clerk. Mrs. Davis of California.
Mrs. Davis of California. No.
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. No.
The Clerk. Mr. Ehlers.
Mr. Ehlers. Yes.
The Clerk. Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. McCarthy.
Mr. McCarthy. Aye.
The Clerk. Mr. Chairman.
The Chairman. No. The noes are 5 the ayes are 3. The
amendment, McCarthy Number 2, fails.
Mr. McCarthy. Mr. Chairman, I have amendment Number 3 Mr.
McCarthy at the desk.
The Chairman. Without objection the amendment is considered
as read and the gentleman is recognized for five minutes.
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Mr. McCarthy. Having thought ahead of time of some of the
arguments you may have to amendment Number 2, I offered in the
worst case scenario that Number 2 failed, amendment Number 3.
Such as the earlier amendment, individuals are required to show
photo ID at the polls. But I have heard from some of the
arguments across the aisle that maybe you disenfranchise
somebody. Gentlelady from California, Ms. Davis, stated people
sign their names when they are in there. So all I would say is
this provision establishes the important principle that voters
have to show the photo IDs. If they do not absolutely have the
voter id when they go in there, all they have to do is sign a
piece of paper claiming they are who they say they are. So we
would take away the argument of disenfranchising somebody. This
is not 100 percent voter proof. But I think it is a step in the
right direction. They can find a common ground to the arguments
that are made by the other side that we could come together
because it wouldn't disenfranchise somebody. They are already
signing their names at the polls. So they would just have to
sign their name, stating they are who they are and listening to
the former attorney general of California saying the reasons
you don't find cases because you don't have the evidence to
move forward. So this would also give the ability to have the
evidence if somebody was providing voter fraud, and then go
right back to what we have--about this bill itself, giving the
voters the confidence in it to be able to move forward. I yield
back my time.
The Chairman. Thank the gentleman. Lady from California,
Ms. Lofgren.
Ms. Lofgren. I note that even though we postponed this
hearing from last week to this week so that everybody could
have an opportunity to look at everybody's amendments, I am
advised by staff that this amendment was received by them only
15 minutes before the markup began.
I don't know what the impact of this amendment would be,
and I think it is something that when we look at this overall
issue and the Election Subcommittee later in the year we will
look at, but I think to throw it out at this time with 15
minutes notice is not the appropriate way to proceed, and so I
would urge that we oppose it at this time and I thank the
gentleman for yielding--or I would yield to Mr. Davis.
Mr. Davis of Alabama. Two quick points. I thank the
gentlelady for yielding. What is unclear from the amendment,
let's say the individual, for whatever reason, was not English
speaking. How would they go about signing the affidavit that
that is an ambiguity that is contained in the amendment? I can
also imagine some instances frankly that this would amount to a
de facto literacy test. And again, someone presumably would
have to go through some step of reading the document and
signing it. And I hear the gentleman thinking that well,
someone should be able to read when they walk in the polling
places and the problem is, we have had that debate in this
country before and we have said no literacy tests. And we
also--I am troubled by the language implications. I yield.
Mr. McCarthy. Was that a question?
Mr. Davis of Alabama. Yes, I yield so the gentleman can
respond to that.
Mr. McCarthy. To vote in the first place, we make people
fill out voter registrations. So I think we take the assumption
from the very beginning that a person can read when they fill
that out. So I wasn't going to anything further. Plus when a
person goes to vote, they already are signing their name. They
have to be able to read where they sign their name. I would
accept a friendly amendment if you wanted to clarify within
this amendment that we would provide the language in which the
person speaks much as if they are----
Mr. Davis of Alabama. Reclaiming my time let me ask the
gentleman one quick question if someone were to walk in right
now and were to fill out the wrong name on the voter form would
they be prosecuted inside your opinion?
Mr. McCarthy. Any decision on the prosecution goes up to
the individual, the DA----
Mr. Davis of Alabama. No----
Mr. McCarthy. Reclaiming my time.
Ms. Lofgren. Actually it is my time.
Mr. Davis of Alabama. I am trying to get an answer to the
question. If an individual were to walk in and I were to say I
am Zoe Lofgren and I were to put Zoe Lofgren down, could I be
prosecuted today? Because it seems if I could be prosecuted
today, this amendment is completely unnecessary.
Mr. McCarthy. No. Only your intent to go forward--to apply
yourself just like identity theft that you were Zoe Lofgren.
You had explained to me in the earlier debate that there are no
cases such as this or not very many. And I have heard from the
attorney general who says that he couldn't move forward in
those cases because there was no evidence----
Mr. Davis of Alabama. The state of the law today, I am
asking use prosecutorial discretion, and if I walked in and
said I am Bob Brady under the law today, can I be prosecuted?
The Chairman. Yes, you would be prosecuted.
Ms. Lofgren. Reclaiming my time I would just note that Mr.
Davis is a former U.S. Attorney, and I think has some
background in all of these things. I think this discussion
leads me to the conclusion we certainly need to know more about
this proposal than we do now. And I am sure that when we have
hearings on this subject matter, we will hear it further.
I also want to note that the majority staff has indicated
that the minority staff sent the amendment at 9 p.m. last
night. I was not sitting in my office at 9 p.m. last night, so
I don't know. I still think it is way too hurried, but I do
hope that we can look at this later in the year in the Election
Subcommittee. And I understand the Chairman wants a vote on
this. I will yield back so that he may take our vote. Thank
you.
Mr. Lungren. Mr. Chairman.
The Chairman. Yes. Mr. Lungren from California.
Mr. Lungren. I would like the last word. Mr. Chairman, this
whole bill is about redundancy. This whole bill is to have a
second way of checking the accuracy of the voter count, if you
will, the attestation required by Mr. McCarthy's alternative is
a redundancy.
It is another check to ensure that people are not going to
commit fraud. As the gentleman knows, when you prosecute,
sometimes it may be easier to prosecute for someone
intentionally signing something under oath that is untrue as
opposed to them attempting to prove the intent to vote
improperly.
The other thing is, I am just sorry, but the arguments I
hear about this could be utilized as a literacy test or this
could be utilized as a voter fee. I mean, all those arguments
can be used by registration. If I were to take a logical
conclusion of my friends on the other side of the aisle we
ought to do away with registration. I presume that would
increase voter participation. Anybody just shows up off the
street can vote. I know there might be fraud involved but it is
more important that we get more people voting whether or not
they qualify.
I mean, the manner in which these amendments are being
dismissed suggests that there is no concern about the identity
of voters, that somehow this bill which purports to ensure that
we are going to protect the integrity of the voting process,
doesn't believe that identity fraud or identity theft has any
place in our discussions, even though it is the hot topic out
there in terms of credit cards, in terms of all sorts of things
in this new world that we live in. And I just find it hard to
believe that Mexico can be ahead of us in terms of its concerns
for the integrity of its system and yet we say if we did this
sort of thing it would somehow violate constitutional norms
because it would be utilized in ways to depress turnout, when,
in fact, just the opposite has been the case in Mexico, in any
number of countries around the world.
Someone diminishes my vote by voting when they don't have a
right to vote as surely as if you refused to allow me to vote
when I have the opportunity to vote.
And we look at this only on one side.
And I just think that that is a terrible shame. And I would
hope that we would at least look at the gentleman's amendment
for what it is and not for some of the outrageous things it has
been suggested it is for. I yield.
The Chairman. The question is on the amendment?
Ms. Lofgren. Mr. Chairman before we vote, may I ask
unanimous consent to add into the record the article from Roll
Call, of The New York Times and The New York Times editorial on
this subject and the National Leadership Council letter?
The Chairman. Without objection.
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Mr. Ehlers. Mr. Chairman, I just want to briefly lend my
support to what the gentleman from California just stated. Mr.
Lungren has made his case very clearly and very eloquently. I
strongly support that. I just cannot, for the life of me,
figure out what the opposition is. We have answered all the
questions of the majority. We have made sure that others can
establish an ID if they wish, and we would pay for it. If they
don't have it, they simply sign their name saying that they are
who they are.
There must be some other reason for opposing it. I would
also just close by saying that if we don't pass something like
this, I predict it is going to pass State by State probably
through referendum or other means. Then once again, we will
have a hodgepodge system. It would be much easier to have one
law that covers the Nation, makes it very clear from State to
State. With that, I will yield back.
The Chairman. Thank you. The question is on the McCarthy
amendment Number 3.
All those in favor, signify by saying ``aye.''
Those opposed, ``no.''
No.
The noes have it.
Mr. McCarthy. Mr. Chairman, I request a roll call vote.
The Chairman. Roll call vote. Clerk please call the roll.
The Clerk. Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Mr. Capuano.
Mr. Capuano. No.
The Clerk. Mr. Gonzalez.
[No response.]
The Clerk. Mrs. Davis of California.
Mrs. Davis of California. No.
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. No.
The Clerk. Mr. Ehlers.
Mr. Ehlers. Yes.
The Clerk. Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. McCarthy.
Mr. McCarthy. Aye.
The Clerk. Mr. Chairman.
The Chairman. No.
The noes are 5 the yeas are 3, the amendment fails.
Mr. Lungren. Mr. Chairman.
The Chairman. I recognize the gentleman from California.
Mr. Lungren. Mr. Chairman I have Lungren Number 4.
The Chairman. Without objection, the amendment is
considered as read and the gentleman is recognized for five
minutes.
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Mr. Lungren. Mr. Chairman, this goes to the provision of a
private right of action contained in the bill and contained in
the manager's amendment or substitute. This amendment would
strike the provisions allowing individuals to bring action in a
Federal court to enforce requirements contained in Title 3 of
HAVA.
Already pursuant to HAVA, States have set up administration
complaint procedures to provide sufficient Federal and State
enforcement of the requirements.
This private right of action provision would open the DOJ
and attorney general to thousands of claims and force the
attorney general to respond in some manner to any complaint
meeting the standards of the bill.
I fear the language is overly broad and will result in
slowing down the process of determining election results and
subject local governments to spend millions of dollars on what
could be politically motivated lawsuits.
The DOJ if you examine their budget, in their current
situation does not have the capacity of staff to handle the
volume of potential claims.
You can promise something. You can give an authorization to
a department such as DOJ, and the ability for something to get
done may not be there.
I recall having 1,000 attorneys and 5,000 employees when I
was attorney general of California, not nearly the size of the
Federal DOJ, but nonetheless, you have limitations on your
resources. And just because there is a law saying that it comes
within your ambit, if you don't have a budget that allows you
to do it, it just--the purpose of the law is frustrated.
And that is why, when under the preexisting law, HAVA, a
requirement for the States to set up administrative complaint
procedures, is now in place, you wonder why we change under
this provision and open up private rights of action and require
the DOJ or presumably require the DOJ and the attorney general
to respond to the potential of thousands of claims.
The intent of the law, HAVA, was to improve elections, I
thought, not to expand litigation.
As an old trial attorney, I love litigation. And some of my
colleagues, and even I, on occasion, made money on litigation.
But, I also saw the limitations of litigation. And
oftentimes, administrative complaint procedures worked far
better than the formal court system.
The National Motor Voter Law has private right of action
for claims. And there is section 1983 of the Civil Rights Act
which is available if they qualify under that.
And so I would just ask that we reach a mid course
correction here, which is to say that the administrative
complaint procedures were established under HAVA, they exist,
as I understand it, in all States, and that that allows for
sufficient and timely enforcement of the requirements where
this may very well lead to litigation with endless processes
which would not allow for final determination of claims.
And with that I would yield back the balance of my time.
The Chairman. Thank the gentleman. Any other discussion on
the amendment? The question is on the amendment.
All those in favor, signify by saying ``aye.''
Those opposed, ``no.''
No.
The noes have it.
Mr. Lungren. Mr. Chairman could I have a roll call vote on
that.
The Chairman. Clerk please call the roll.
The Clerk. Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Mr. Capuano.
Mr. Capuano. No.
The Clerk. Mr. Gonzalez.
Mr. Gonzalez. No.
The Clerk. Mrs. Davis of California.
[No response.]
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. No.
The Clerk. Mr. Ehlers.
[No response.]
The Clerk. Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. McCarthy.
Mr. McCarthy. Aye.
The Clerk. Mr. Chairman.
The Chairman. No. The noes are 5, the yeas are 2, the
amendment fails.
Mr. McCarthy. Mr. Chairman, I have amendment Number 4.
The Chairman. I recognize Mr. McCarthy from California.
Without objection the amendment is considered as read and you
are recognized for five minutes.
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Mr. McCarthy. I thank you for your patience Mr. Chairman.
This is pretty straightforward. As we move forward, we have to
remember where we have been. In these hearings, we have heard
time and time again about just recently how we passed HAVA and
that we have not funded HAVA, there is still approximately $800
million that has not been funded through HAVA. A lot of States
have spent a lot of money buying machines, going forward with
counties and others. This would put an amendment into the bill
that would suspend the requirements of this bill until the
authorization amount of the money is fully appropriated.
Now why do I offer that? Is to build the trust. We have
just forced these States to go through something saying this is
the direction we wanted to go. Now we are coming full circle
right back and saying we want you to do something else. We say
we have authorized the money but history shows we have not
funded it all the way. And I have come from State government.
The first thing I have always had problems with was unfunded
mandates. Now we are directing it. We say there is money there.
All this is saying is that if that is truthful, if the money is
there, there wouldn't be a problem because this would suspend
the problem if the money is not there. If the money is there,
there is no problem whatsoever. So to me it is a friendly
amendment.
Mr. Davis of Alabama. Mr. Chairman, I move to adopt with
respect to No Child Left Behind.
The Chairman. We get like that after 4 or 5 hours. Does
anyone else want to be recognized? Discussion on the amendment?
The question is on the amendment. All those in favor, signify
by saying ``aye.''
All those opposed? No.
The noes have it.
Mr. McCarthy. Mr. Chairman I request a roll call vote.
The Chairman. Roll call vote by the Clerk please. McCarthy
Number 4.
The Clerk. Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Mr. Capuano.
Mr. Capuano. No.
The Clerk. Mr. Gonzalez.
Mr. Gonzalez. No.
The Clerk. Mrs. Davis of California.
[No response.]
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. No.
The Clerk. Mr. Ehlers.
Mr. Ehlers. Aye.
The Clerk. Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. McCarthy.
Mr. McCarthy. Aye.
The Clerk. Mr. Chairman.
The Chairman. No. The noes are 5, the yeas are 3, the
amendment fails.
Mr. Lungren. Mr. Chairman, I think I have the last
amendment.
The Chairman. Oh, whoopee.
The Chair recognizes the gentleman from California, Mr.
Lungren. Without objection, the amendment is considered as read
and you are recognized for five minutes.
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Mr. Lungren. Thank you very much, Mr. Chairman.
Mr. Chairman, this is a very simple amendment. It would
delay implementations of the bill until 2012. Based on the
testimony and the letters that we have received from election
officials across the country, that the dates proscribed in the
bill are unattainable. Testimony presented to the subcommittee
on elections suggest that the changes that are required under
this bill would require approximately 18 months to 4 years to
accomplish.
As a matter of fact, the letter from the one disability
organization, American Association of People with Disabilities,
they believe it would be even longer. They suggest that we have
a date of 2014, however being very reasonable I thought that
was very too long. So my amendment has 2012 in it.
Mr. Lungren. There is no voting system currently certified
and in use that meets the very specific requirements proposed
in this bill, nor are there such systems available in the
market that can be and have been or can be appropriately tested
and certified for use through the EAC voting system
certification program by the year 2008. State and local
election officials and voters continue to absorb the sweeping
changes brought about by our previous law, HAVA--almost sounds
like a school on the East Coast as spoken of by some members
from Massachusetts--but HAVA and State legislation. It is
unrealistic for the States to implement all these new Federal
mandates by 2008. Standards and guidelines should be
established before requiring States to purchase this new voting
equipment.
The bill before us unfortunately fails to recognize the
need for public outreach and education associated with new
voting equipment and procedures, including poll workers and
poll worker training for these new machines. Compliant voting
systems under this bill are limited. DRE systems that would
comply do not exist at all. Ballot conversion equipment and
software to meet the disability access requirements has not
been tested or certified or used by any existing voting system.
And when you realize we have what I consider to be
unenforceable or absent penalties in this bill with respect to
source code nonpublication information, then I think you
understand we might even have more difficulty in getting
vendors out there to participate.
A famous political scientist named ``Dandy'' Don Meredith
once said, ``If ifs and buts were candy and nuts, every day
would be Christmas,'' and it appears in many ways that's what
this bill is. We have been told that those who are out there
that would be given the responsibility for doing this can't do
it. We have been doing that from counties as large as Los
Angeles to counties as small as in my district in Amador County
up in the mountains. And yet we carry on with this bill as if
we believe it is going to happen because we wish it so. It
would be wonderful if that is the way the world works, but it
doesn't.
So I am attempting to not do anything else in the bill.
Everything else remains the same but delay implementation so
that we can actually ensure that those things that we believe
are required under this bill can actually come to fruition. So
it is a delay of the implementation until the year 2012.
And with that, I yield back the balance of my time and I
have no more amendments. I know the chairman will be
disappointed to hear that.
The Chairman. I am having fun.
Ms. Lofgren. Mr. Chairman.
The Chairman. Yes, the lady from California, Ms. Lofgren.
Ms. Lofgren. I oppose the amendment and urge that all of my
colleagues oppose the amendment. To delay this process, to
delay the ability to recount in elections and to have a
transparent process until 2012, which would be two Federal
elections from now, is I think entirely unreasonable. The
timing of the bill is not too aggressive. If we enact this
promptly, I think there is adequate time to implement it. Those
of us on the Election Subcommittee, I am sure all remember that
the Republican Governor of Florida came and was a witness at
our hearing. And he advised us at that hearing that the entire
State of Florida is going to transition to an optical scan
voting scheme before November 2008--actually before February
was what he told us. We know that in the past jurisdictions
have been able to transition rapidly. Aside from the fact that
the bill, the substitute allows jurisdictions to retain their
DREs equipped with thermal reel-to-reel printers or accessible
voting systems that use or produce the paper trail until 2010,
only the jurisdictions that use voting systems that had no
voter-verified paper trail at all have to upgrade, and that is
a small jurisdiction.
Take a look at New Mexico. New Mexico enacted a law March
2, 2006 requiring conversion from a mixed system with paperless
electronic voting machines to a uniform statewide system using
paper optical scan ballots with accessible ballot marking
devices. All 33 counties fully deployed the system 8 months
later in time for the 2006 mid-term election.
Nevada's then Secretary of State, now Representative Dean
Heller, mandated in December of 2003 that the State would
obtain new voting systems with voter-verified paper records. By
the following August, just 8 months later, 16 of 17 counties
deployed voter-verified paper record systems countywide in time
for the primary, and all counties had them for the November
2004 presidential election.
In North Carolina they enacted a law requiring voter-
verified paper records on August 26, 2005. Eight months later,
in time for the May 2006 primary, the entire State had
completed the conversion process, including RFP, testing
certification and training to the new systems.
West Virginia enacted a law requiring voter-verified paper
records in May of 2005. Every county had new voter-verified
paper record equipment in place for the primary the following
year.
What is at stake is whether we have another unverifiable
Federal election, potentially a presidential election, the
results of which might depend on one State, and the results in
that State might not be independently verifiable because there
are no voter-verified paper ballots. We don't have to put up
with that. We can get this done in time for the 2008 election.
We have ample waiver opportunities for those who have old
systems, but I think it is time for the Congress to say enough
is enough. Certainly we can ask States and localities to step
forward and take the action that they are capable of taking, as
New Mexico did, as Nevada did, as North Carolina did, as West
Virginia did, and as Florida is going to do.
I think that the amendment offered by the gentleman just
guts this bill, and I hope that all of us will vote against it
and, noting that the time is late, I will----
Mr. Lungren. Would the gentlelady yield?
Ms. Lofgren. I will yield back to the chairman because he
wants a vote.
The Chairman. Recognize Mr. Ehlers. Mr. Ehlers.
Mr. Ehlers. Thank you. First of all, I believe this
amendment summarizes what needs to be done to make this a
workable bill. This is just one aspect of it, but let me
discuss the whole bill as a whole. I am really bothered by it.
First of all, this authoritarian view that what we do in the
United States Congress is the right way to do it. We don't care
what the States think, we don't care what the local governments
think, we don't care what the county clerks think, and we don't
care what the city clerks think.
I show this stack of letters over two inches high, Indiana,
Arizona, Iowa, North Dakota, West Virginia, Michigan, Ohio,
South Carolina, Florida, Tennessee, Oregon, Colorado, Wyoming,
Vermont, California, Kentucky, Los Angeles, which is not a
State of its own, but I think most people know where it is.
Arkansas, Georgia, Missouri, Pennsylvania, Virginia, Illinois,
Maryland, North Carolina, Washington, New York, and so on down.
I don't want to take all the time to list all of them. These
people know what they are doing. They have to work with us.
They all wrote in and said this bill is not good. It should not
pass in its present form. And yet the majority insists on
passing it just as is without a single word changed, not
accepting any of our amendments.
I am also concerned about the attitude displayed by the
majority, that somehow computers are bad, but paper is good. I
think it is a gross mistake to require them to use one of the
two alternatives without letting them use their own judgment.
This bill supersedes the judgments of the city clerks, and
the county clerks, and the State election officials. It is
simply wrong for us to force our ideas and our opinions on the
good people of this country who are used to running elections,
know how to do it, and know what problems this legislation
brings.
Mr. Chairman, I have the highest respect for you. I know
you are running for another office and I wish you well. I hope
you make it. But I hope this bill doesn't pass. I would like to
keep you here, by the way. I want to make it clear, but for
your own benefit since you want the job, I hope you will get
it. I also hope for your sake if you do get it that this bill
doesn't pass because you would have to live with it.
The one consolation I have throughout all this is that I am
sure the Senate will not accept the bill as it stands. I am
sure they will drastically rewrite it, and I hope that it
becomes a good bill before it becomes law. But I am very
disappointed in the discussion today and the rejection of all
of our amendments even though there is no logical argument why
we should not accept them.
Ms. Lofgren. Would the gentleman yield?
Mr. Ehlers. With that, I will yield back my time.
The Chairman. The gentleman from California, Mr. McCarthy.
Mr. McCarthy. Thank you, Mr. Chairman. I just want to
clarify a few things that were said. I was here when the
Governor of Florida came. He never endorsed this bill, and the
legislation that Florida passed out down allows continued use
of DRE machines without paper into 2012. We have gone through
HAVA and it took 4 years. I come from a large State of
California where we just made everybody switch. Just to put
this out to bid, just to go forward--and we have moved our
primary up. And to have this type of confusion in a year of a
presidential election I don't think is the right way to go
about it and does not really come to the commonsense as we move
forward.
I listened to the Governor of Florida and I listened to
each and every organization that represented election
officials. They were unanimous in their approach that they
thought this was the wrong way to go.
I yield back the balance of my time.
The Chairman. I thank the gentleman. Any other discussion?
The question is on the amendment. All in favor signify--I am
sorry. I recognize the gentleman from Texas.
Mr. Gonzalez. I didn't know if this was the appropriate
time. Mr. Chairman, I would just be asking unanimous consent at
this time to be allowed to file today the papers of this
hearing, that they be made part of the record. The statement of
concern regarding the nature of H.R. 811 and the problems of
electronic voting technologies and electronic ballots from the
Puerto Rican Legal Defense and Education Fund.
Ms. Lofgren. Would the gentleman yield?
Mr. Gonzalez. Yes.
Ms. Lofgren. I just wanted to briefly address the issue of
amendments because we have not accepted amendments here today
because we didn't agree with them, but I think it is important
to note that when we postponed the markup last week we did look
through the amendments that had been offered. We did adopt
several of them in the substitute, and prior to the markup our
staffs went through and scrubbed the substitute, making changes
that were suggested by the majority in about eight instances.
So I understand the minority still disagrees with the bill,
but I think it is important to note that we have tried to
collaborate where we can.
I would further note that of the list of states that the
ranking member just read, only six would have to make changes
by 2008. In some cases--you know it reminds me of the election
official from North Dakota who said gosh, you know, this would
require optical voting systems. But his State already has
optical voting systems. So I think there is a lot of resistance
to change from individuals in States that have already fully
complied with the act and with the substitute, and with that, I
would yield back to Mr. Gonzalez and thank him for yielding me
the time.
Mr. Gonzalez. Thank you very much, Ms. Lofgren. Simply
again, just ask for unanimous consent to allow me to file the
statements.
The Chairman. Without objection, so ordered.
Mr. Gonzalez. Thank you, Mr. Chairman.
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The Chairman. All those in favor of the Lungren amendment
No. 5 signify by saying ``aye.'' Any opposed ``no.'' The noes
have it. A roll call vote is requested.
The Clerk. Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Mr. Capuano.
Mr. Capuano. No.
The Clerk. Mr. Gonzalez.
Mr. Gonzalez. No.
The Clerk. Mrs. Davis of California.
[No response.]
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. No.
The Clerk. Mr. Ehlers.
Mr. Ehlers. Yes.
The Clerk. Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. McCarthy.
Mr. McCarthy. Aye.
The Clerk. Mr. Chairman.
The Chairman. No.
The noes are 5, the yeas are 3. The amendment fails.
We are now on the substitute. Ms. Lofgren had to leave. We
wanted to have some more discussion on the substitute. We will
open the floor up for discussion on Ms. Lofgren's amendment in
the nature of a substitute, as amended.
Mr. Ehlers. Mr. Chairman, I have already said my piece
about the Lofgren substitute, and I just registered my dismay
that the bill is passing in this form. I yield to any of my
colleagues who wish to make a closing comment.
Mr. McCarthy. Mr. Chairman, I think we have had some
lengthy debate here into the amendments and some of the
concerns that we have with this bill, starting out the time,
second the money. We had three hearings in the subcommittee,
and I will tell you, election official after election official
that does this came forward and said, there is real concerns
about this. I have sat down and talked to many of them. They
want to work with us. The Association of Counties, the
Association of Elected Officials--that is not just your
Secretaries of States. That is all the way down--are opposed to
it. And I understand when Ms. Lofgren says we are not going to
sit and wait for them just to support something all the way,
but I do believe there is a way to do it where we can find
common ground.
When we have a presidential election, when this society is
able to be strong together with the trust they have in an
election, and this is what this is about, bringing greater
confidence, when we are not even going to deal with who is
there to vote and we are going to predetermine who is the
winner and loser, saying that the paper is always right even
though we see elected officials come to us and say the paper
jammed. So knowingly, we are voting for a bill that determines
the outcome of an election, knowing that system doesn't always
work right. We would rather have a checks and balance.
I believe there is an ability within this committee to
craft a bill that is bipartisan, commonsense and that everybody
can be behind. That is where I would want to be. I would think
when you are dealing with elections, you put people before
politics. And I just feel frustrated with the outcome of which
way I see this going.
Yield back my time.
Mr. Lungren. Mr. Ehlers, do you yield?
Mr. Ehlers. Yes, I would be pleased to yield to my
colleague.
Mr. Lungren. I am with those who believe we ought to be
concerned about the integrity of our system and that we ought
to have a system in which our constituents have confidence, and
that can come about in a number of ways. Evidently this bill
has made the determination that paper is the way to do it. When
I was a kid I remember playing rock, scissors, paper. But I
guess now it is rock, scissors, paper and computer, and paper
always wins. Now maybe that is what we have to do. I am just
not convinced that we have made that determination
appropriately yet. And also from my experience at the State
level, maybe I am conditioned by this because I remember the
FBI used to always come in and tell us they knew best. They
always wanted information, they rarely shared information, but
they knew better than we did on how to do things. And I hope we
are not doing that with this bill because there does seem to be
on the part of most of the election officials I know a desire
to have a system that works well and a system that does have
integrity within it. And the frustration I get from the folks
back home is, you folks told us how to do it just a couple
years ago. We tried in good faith to do it. Now you are telling
us that didn't quite do it, so you are asking us to do
something completely different, you are giving us less than
half the time frame you gave us before, we saw you didn't give
us the money that we needed last time. Please accept our
promise you are going to get the money, and in reflecting on my
experience at the State level, that is a whole lot to swallow
and to accept.
And I just hope that we understand that this bill probably
is not going to go very far in the Senate, and I don't say that
as a threat because we ought to pass what we think is right and
then deal with the Senate. But if in fact that is true, I hope
we can come back and work on a bipartisan basis to do what I
hope we all want to do, which is to extend the possibility of
participation in our electoral process, give a greater sense of
confidence in the integrity of our system and do it in a way
that is user friendly, both to the voter and to the local and
State officials that are required to enforce the law.
I thank the gentleman for yielding.
Mr. Ehlers. Thank you, Mr. Chairman. I agree totally with
the statements of the two members on my side of the aisle. I
yield back the balance of my time.
The Chairman. Thank you. The question is on agreeing to the
Lofgren amendment in the nature of a substitute, as amended.
All in favor signify by saying ``aye.'' All those opposed
``no.'' In the opinion of the Chair, the ayes have it.
Mr. Ehlers. I ask for a recorded vote.
The Chairman. Okay. I will help you along here. Recorded
vote is requested. The Clerk will call the roll.
The Clerk. Ms. Lofgren.
Ms. Lofgren. Aye.
The Clerk. Mr. Capuano.
Mr. Capuano. Aye.
The Clerk. Mr. Gonzalez.
Mr. Gonzalez. Aye.
The Clerk. Mrs. Davis of California.
Mrs. Davis of California. Aye.
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. Aye.
The Clerk. Mr. Ehlers.
Mr. Ehlers. No.
The Clerk. Mr. Lungren.
Mr. Lungren. No.
The Clerk. Mr. McCarthy.
Mr. McCarthy. No.
The Clerk. Mr. Chairman.
The Chairman. Aye.
The ayes are 6, the noes are 3. The amendment in the nature
of a substitute, as amended, is agreed to. The Chair now
recognizes the gentlewoman from California to offer a motion.
Ms. Lofgren. Mr. Chairman, I move that the Committee report
the bill, H.R. 811, as amended, favorably to the House.
The Chairman. The motion is not debatable. Those in favor
say ``aye.'' Any opposed say ``no.'' The ayes have it.
Mr. Ehlers. I ask for a roll call.
The Chairman. I will have the Clerk call the roll.
The Clerk. Ms. Lofgren.
Ms. Lofgren. Aye.
The Clerk. Mr. Capuano.
Mr. Capuano. Aye.
The Clerk. Mr. Gonzalez.
Mr. Gonzalez. Aye.
The Clerk. Mrs. Davis of California.
Mrs. Davis of California. Aye.
The Clerk. Mr. Davis of Alabama.
Mr. Davis of Alabama. Aye.
The Clerk. Mr. Ehlers.
Mr. Ehlers. No.
The Clerk. Mr. Lungren.
Mr. Lungren. No.
The Clerk. Mr. McCarthy.
Mr. McCarthy. No.
The Clerk. Mr. Chairman.
The Chairman. Aye.
The ayes are 6, the noes are 3. The motion is agreed to.
Without objection, the motion to reconsider is laid upon the
table and the bill as amended will be reported to the House.
Mr. Ehlers. Mr. Chairman?
The Chairman. Yes, Ranking Member, Mr. Ehlers.
Mr. Ehlers. Pursuant to clause 2(L) of House rule XI, I
announce that I am requesting the two additional calendar days
provided by that rule during which members may file
supplemental minority or additional views for inclusion in the
report to the House.
The Chairman. Members will have two additional days
provided by House rules to file views. Without objection, the
staff will be authorized to make technical and conforming
changes to prepare H.R. 811 for filing.
We have a couple other pieces of business that we have to
dispose of. The Committee will now consider four original
resolutions to dismiss pending election contests. Each of these
resolutions will then be reported to the House as privileged.
I now call up an original resolution relating to an
election contest in the 5th District of Florida, the text of
which is before the Members. Without objection, the first
reading of the resolution will be dispensed with and the
resolution shall be considered as read and open for amendment
at any point. I now recognize the gentlewoman from California,
Mrs. Davis.
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Mrs. Davis of California. Mr. Chairman, we have reached a
bipartisan agreement that the election contest relating to the
5th District of Florida is without merit and should be
dismissed.
The Chairman. Any additional debate on the resolution? Mr.
Ehlers agrees. The Chair recognizes the gentlewoman from
California for the purpose of making a motion.
Mrs. Davis of California. Thank you, Mr. Chairman. I move
that the Committee report favorably to the House an original
resolution, the text of which is before us, to dismiss the
election contest in the 5th District of Florida.
The Chairman. The question is on the motion by the
gentlewoman from California. All those in favor say ``aye.''
Any opposed? The ayes have it. The motion is agreed to.
Without objection, a motion to reconsider is laid upon the
table. The resolution will be reported to the House. Members
will have two additional days provided by House rules to file
views.
I now call up an original resolution relating to an
election contest in the 21st District, Florida, the text of
which is before the Members. Without objection, the first
reading of the resolution will be dispensed with and the
resolution will be considered as read and open for amendment at
any point. I recognize the gentlewoman from California.
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Mrs. Davis of California. Mr. Chairman, we have also
reached a bipartisan agreement that the election contest
relating to the 21st District of Florida is without merit and
should be dismissed.
The Chairman. Is there any additional debate on the
resolution?
Mr. Ehlers. The minority agrees.
The Chairman. The Chair recognizes the gentlewoman from
California for the purpose of making a motion.
Mrs. Davis of California. Mr. Chairman, I move that the
Committee report favorably to the House an original resolution,
the text of which is before us, to dismiss the election contest
in the 21st District of Florida.
The Chairman. The question is on the motion by the
gentlewoman from California. All those in favor signify by
saying ``aye.'' Any opposed? The ayes have it. The motion is
agreed to.
Without objection, a motion to reconsider is laid upon the
table. The resolution will be reported to the House. Members
have two additional days provided by House rules to file views.
I now call up an original resolution relating to an
election contest in the 24th District of Florida, the text of
which is before the Members. Without objection, the first
reading of the resolution will be dispensed with and the
resolution shall be considered as read and open for amendment
at any point. I recognize again the gentlelady from California.
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Mrs. Davis of California. Thank you, Mr. Chairman. We have
reached another bipartisan agreement on the election contest
relating to the 24th District of Florida.
In this case, Mr. Chairman, I just want to mention because
I know members have heard from individuals from the community.
We certainly realize that Mr. Curtis and his supporters have
worked very diligently to demonstrate that this contest merits
further consideration. They have knocked on thousands of doors,
and we recognize their dedication. But under our strong
protection for secret ballots, the law can not recognize sworn
affidavits as a substitute for votes cast via secret ballot.
Under the Federal Contested Election Act, this contest fails to
reach the necessary thresholds to warrant further
consideration, and therefore it is also to be dismissed.
The Chairman. Thank you. Is there any additional debate on
the resolution?
Mr. Ehlers. We agree.
The Chairman. The Chair recognizes the gentlewoman from
California for the purpose of making a motion.
Mrs. Davis of California. Mr. Chairman, I move that the
Committee report favorably to the House an original resolution,
the text of which is before us, to dismiss the election contest
in the 24th District of Florida.
The Chairman. The question is on the motion by the
gentlewoman from California. All those in favor signify by
saying ``aye.'' Opposed? The ayes have it. The motion is agreed
to.
Without objection a motion to reconsider is laid upon the
table. The resolution will be reported to the House. Members
will have two additional days provided by House rules to file
views.
Finally, I call up an original resolution relating to an
election contest in the 4th District of Louisiana, the text of
which is before the Members.
Without objection, the first reading of the resolution will
be dispensed with, and the resolution shall be considered as
read and open for amendment at any point. I recognize the
gentlewoman from California.
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Mrs. Davis of California. Thank you, Mr. Chairman. We have
indeed reached another bipartisan agreement that the election
contest relating to the 4th District of Louisiana, that this
case is not a proper subject for a contest brought under FCEA
and should be dismissed.
The Chairman. Is there any additional debate on the
resolution?
Mr. Ehlers. The minority agrees.
The Chairman. The Chair recognizes the gentlewoman from
California for the purpose of making a motion.
Mrs. Davis of California. Mr. Chairman, I move that the
Committee report favorably to the House an original resolution,
the text of which is before us, to dismiss the election contest
in the 4th District of Louisiana.
The Chairman. The question is on the motion by the
gentlewoman from California. All those in favor signify by
saying ``aye.'' Any opposed? The ``ayes'' have it. The motion
is agreed to.
Without objection, the motion to reconsider is laid upon
the table. The resolution will be reported to the House.
Without objection, the staff will be authorized to make
technical and conforming changes to prepare each of the four
resolutions for filing.
The final item of business today is approval of a Committee
resolution to approve franked mail allowances for the standing
and select committees of the House for the 110th Congress.
The Chair now calls up Committee Resolution No. 4, which is
before the Members. Without objection, the first reading will
be dispensed with, and without objection, the Committee
resolution will be considered as read and open for amendment.
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The Chairman. Committee Resolution No. 4 provides franking
funds for committees and select committees for the 110th
Congress and is not sent to the House floor. Our Committee is
responsible under statute for limiting the amount of franking
funds each committee may spend. The franking allocation is
unrelated to the operating budgets that we give committees in
the omnibus funding resolution. We adopted a similar version of
this resolution two years ago with the same $5,000 with
bipartisan support.
I will inform each Committee Chairman of our action today.
If any committee needs, and can justify, additional franking
funds, I will bring that request back to House Administration
for consideration.
The Chair now recognizes the Ranking Member.
Without objection, the previous question is ordered. The
question is now on agreeing to Committee Resolution No. 4. All
those in favor say ``aye,'' those opposed ``no.'' The ``ayes''
have it. The Committee resolution is agreed to.
Without objection, the motion to reconsider is laid upon
the table. Without objection, the staff will be authorized to
make any technical and conforming changes to the Committee
resolution.
One more announcement of ``interim authority'' actions. The
Chair would like to conclude by making an announcement of the
exercise of ``interim authority'' on behalf of the Committee.
This announcement is usually done at the organizational
meeting. With the Chairwoman no longer with us, I will complete
the process today.
The Chairwoman undertook the following actions on behalf of
the Committee in the 110th Congress prior to its organization.
She approved 5 consultant contracts, 15 detailee requests, and
5 Federal retirement waivers. In addition, she requested the
preservation of equipment relevant to the pending election
contest. I am not aware of any other actions under interim
authority.
There being no more further business before us, the
Committee stands adjourned.
[Whereupon, at 5:34 p.m., the Committee was adjourned.]
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