    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

    MARKUP OF H. RES. 1068, H.R. 5493, H.R. 3032, H.R. 281, H.R. 5036; AND
        AN AMENDMENT TO REGULATIONS GOVERNING THE USE OF OFFICIAL FUNDS

    =======================================================================

                                    MEETING

                                   before the

                               COMMITTEE ON HOUSE
                                 ADMINISTRATION
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 SECOND SESSION

                                   __________

                     HELD IN WASHINGTON, DC, APRIL 2, 2008

                                   __________

                           Printed for the use of the
                       Committee on House Administration

                           Available on the Internet:
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                       COMMITTEE ON HOUSE ADMINISTRATION

                    ROBERT A. BRADY, Pennsylvania, Chairman

    ZOE LOFGREN, California              VERNON J. EHLERS, Michigan
      Vice-Chairwoman                      Ranking Minority Member
    MICHAEL E. CAPUANO, Massachusetts    DANIEL E. LUNGREN, California
    CHARLES A. GONZALEZ, Texas           KEVIN McCARTHY, California
    SUSAN A. DAVIS, California
    ARTUR DAVIS, Alabama

                               Professional Staff

                     S. Elizabeth Birnbaum, Staff Director

                     Will Plaster, Minority Staff Director

    MARKUP OF H. RES. 1068, H.R. 5493, H.R. 3032, H.R. 281, H.R. 5036; AND
        AN AMENDMENT TO REGULATIONS GOVERNING THE USE OF OFFICIAL FUNDS

                                  ----------

                            WEDNESDAY, APRIL 2, 2008

                      House of Representatives,
                     Committee on House Administration,
                                                Washington, DC.
        The committee met, pursuant to call, at 12:22 p.m., in Room
    1310, Longworth House Office Building, Hon. Robert A. Brady
    (chairman of the committee) presiding.
        Present: Representatives Brady, Lofgren, Capuano, Davis of
    California, Davis of Alabama, Ehlers, Lungren, and McCarthy.
        Staff Present: Liz Birnbaum, Staff Director; Thomas Hicks,
    Senior Election Counsel; Janelle Hu, Election Counsel; Jennifer
    Daehn, Election Counsel; Matt Pinkus, Professional Staff/
    Parliamentarian; Kyle Anderson, Press Director; Kristin
    McCowan, Chief Legislative Clerk; Daniel Favarulo, Legislative
    Assistant, Elections; Jamie Fleet, Deputy Staff Director;
    Gineen Beach, Minority Election Counsel; Ashley Stow, Minority
    Election Counsel; Fred Hay, Minority General Counsel; and Bryan
    T. Dorsey, Minority Professional Staff.
        The Chairman. The meeting of the House Administration
    Committee will now come to order.
        We have several matters to mark up today.
        The first order of business is a housekeeping resolution,
    Committee Resolution No. 6, which is before the members.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.001

        The Chairman. This will modify the majority membership of
    the Subcommittee on Capitol Security so that Mr. Capuano will
    now chair that subcommittee and I will serve as a member.
        Without objection, the committee resolution is considered
    as read. The resolution is agreed to without objection. The
    motion to reconsider is placed upon the table without
    objection.
        And one caveat to that is I was approached by Mr. Lungren
    to have a private meeting with the Capitol Hill Police and the
    Sergeant at Arms. I agreed to do that, and I hope that the new
    subcommittee chairman would agree to do that, too.
        So, without objection, the motion is laid upon the table;
    and, Mike, you are now the new subcommittee chairman. Would you
    like to make a speech?
        No, you don't want to? Fine.
        The committee will now turn to H.R. 5493, a bill to provide
    that the day for paying staff salaries in the House of
    Representatives may be established by regulations of the
    Committee on House Administration.
        [The information follows:]

        [GRAPHIC] [TIFF OMITTED] 42897A.002

        [GRAPHIC] [TIFF OMITTED] 42897A.003

        The Chairman. I will make just a brief opening statement on
    this bill.
        The House of Representatives currently pays the staff once
    a month. The executive branch, the Senate and most private
    companies pay their employees twice a month or every one or two
    weeks. I believe we should make the change because once a month
    pay can be very difficult for staffers budgeting on a tight
    paycheck.
        Unfortunately, the committee can't change the pay schedule
    for House employees until we change the law. The bill will give
    the committee the authority to change the day the staffers are
    paid. It won't change their pay schedule right away once this
    bill is enacted. The committee will adopt regulations that
    change the paydays.
        And I thank my friend and colleague, Mr. Ehlers, for co-
    sponsoring this bill; and I would like to recognize him for any
    opening statement.
        Mr. Ehlers. Thank you, Mr. Chairman.
        Yes, I do support it. But I also want to make it clear that
    this particular bill establishes the authority of this
    committee to make the determinations. I want it to be clearly
    understood that this does not mean that we will automatically
    and soon alter the current House pay schedule.
        I also want to make it clear that this particular bill
    makes it clear that we have the authority and that the CAO
    could not take any action on this without the approval of the
    committee. That was not clear before this law was passed.
        So because there are obvious administrative challenges that
    would impact the CAO and a number of cultural implications
    within the House population that have to be addressed prior to
    making such a change, we have to proceed thoroughly and
    carefully just to make sure it absolutely works and the
    employees agree to it, because it is going to affect their pay
    in some ways. Many employees pay their mortgages, utility bills
    and other financial obligations in concert with the monthly pay
    schedule. We have to investigate to what extent the employees,
    how they will change their monthly pay schedule into a
    bimonthly pay schedule. So there are a number of issues that
    have to be addressed.
        And as I say, I am not opposed to it at this time, but I am
    opposed to just jumping into it without the committee fully
    looking through these efforts and working with CAO on it and
    make sure that this bill does require a final vote of the
    committee before that goes into effect.
        Thank you, Mr. Chairman. I reserve the balance of my time.
        [The statement of Mr. Ehlers follows:]

        [GRAPHIC] [TIFF OMITTED] 42897A.004

        [GRAPHIC] [TIFF OMITTED] 42897A.005

        The Chairman. Thank you.
        Would anybody else like to speak on this?
        Mr. Ehlers. I yield back the balance of my time.
        The Chairman. I now call up H.R. 5493. Without objection,
    the first reading of the bill will be dispensed with; and
    without objection the bill is considered as having been read
    and open for amendment at this point.
        Is there any debate?
        If not, I move the committee report H.R. 5493 favorable to
    the House. All those in favor, signify by saying aye.
        Any opposed?
        The ayes have it, and the motion is agreed to. Without
    objection the motion to reconsider is laid upon the table and
    the bill is reported to the House.
        The next item of business, House Resolution 1068.
        [The information follows:]

        [GRAPHIC] [TIFF OMITTED] 42897A.006

        [GRAPHIC] [TIFF OMITTED] 42897A.007

        The Chairman. Again, I will make just a few brief
    statements.
        We received a specific request from the liaisons who serve
    in each of the branches of the military and assist us daily in
    the House of Representatives. They have just a simple favor to
    ask, that they be allowed to use the House staff gym since they
    work here far away from their ordinary military physical
    fitness facility.
        In order to ensure that these military liaisons can
    maintain their physical fitness and readiness while they serve
    here in the House, this House resolution will allow them to use
    the House staff gym. The committee will adopt a resolution for
    use of this facility.
        Again, I thank my friend and colleague, Mr. Ehlers, for co-
    sponsoring this resolution. I recognize him for any opening
    statement.
        Mr. Ehlers. Thank you, Mr. Chairman. Just very briefly.
        I think this is a good idea. I heard many years ago, and I
    have always remembered the statement, that an Army travels on
    its stomach, indicating the importance of food to an Army.
    However, I want to make sure that the stomachs of the military
    liaisons don't get too big, and so this will very neatly help
    them retain their trim shape that they need if they are called
    back to active duty. So I support it.
        The Chairman. Thank you, Mr. Ehlers.
        Anybody else have any comments?
        I call House Resolution 1068.
        The Chairman. Without objection, this resolution will be
    considered as read and open for amendment at any point. I offer
    an amendment to make a minor change to ensure the Coast Guard
    liaison can be included, also.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.008

        The amendment is considered as read. Is there any
    discussion on that amendment?
        If not, the question is on the amendment. All those in
    favor, say aye. Any opposed, say no.
        The ayes have it, and the amendment is agreed to.
        I move that the committee report House Resolution 1068 as
    amended favorably to the House. 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 final item of business is approval of an amendment to
    the regulation governing use of official funds by Members,
    committees and officers of the U.S. House of Representatives,
    the Alternate Ride Home amendment, which is before the members.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.009

        [GRAPHIC] [TIFF OMITTED] 42897A.010

        The Chairman. This regulation will help staffers who travel
    to work by carpool, mass transit or anything other than a
    single passenger car. For example, when the House is in session
    late and travel home is not safe or sometimes not even possible
    after the Metro closes, this regulation would reimburse their
    taxi fare. The employees will fill out an Alternate Ride Home
    form, which we will make available on HouseNet, and that form
    will then be attached to the voucher submitted in support of
    the payment of the taxi fare. The employee authorizing will
    sign off on the validity of the expense and the cost of
    approval of the voucher.
        Because this regulation authorizes a new category of
    reimbursement expense, I have agreed to ask the House Inspector
    General to review use of this for up to 6 months so we can see
    how often it is being used or whether additional controls are
    needed.
        We had first planned to adopt this regulation at a business
    meeting on February 12, but our Republican colleagues expressed
    concern about whether the rule might be abused, and I agreed to
    hold off and to try to reach an agreement. Over the last 6
    weeks or so, we have exchanged numerous drafts; and we have
    agreed on 9 out of 10 issues.
        We still have one minority disagreement about whether a
    taxi fare should be repaid on days when the House is not in
    session. I have decided we should go forward with this
    resolution without that limitation, rely on the discretion of
    our colleagues to use this authority appropriately and keep the
    staff safe.
        Too often, we ask our staff to stay late at night when a
    bill must be considered or to negotiate conference reports
    throughout the weekends; and the need for safety is not just a
    function of when the House is in session.
        This is a new regulation that will seek to review advice
    from the IG on the issue. I know the Republican colleagues are
    concerned that it might be abused, but I hope that they will
    trust that we can add further controls if that turns out to be
    necessary.
        And now I would like to recognize again Mr. Ehlers for any
    statement.
        Mr. Ehlers. Thank you, Chairman Brady.
        I commend you for making the safety and security of the
    House staff a priority. Those employees whose work requires
    them to be present when mass transit or their arranged method
    of transportation is unavailable should not be penalized
    financially.
        That being said, however, I have strong concerns that the
    language of the Alternate Ride Home program is fairly broad and
    is vulnerable to the possibility of abuse. We have seen before
    that the ill intent of a few can ruin a benefit for the many.
    With that in mind, I join you in your request that the House
    Inspector General, Jim Cornell, review this program in 6 months
    to ensure that it is being used in the spirit in which it was
    intended.
        Let me also add, Mr. Chairman, that you mentioned the
    factor that we had suggested it not apply when we are not in
    session. And I understand the reason for your objection; and,
    frankly, I think you are right.
        I do have a suggestion for you to consider that perhaps we
    could add in mutual agreement when it goes to the floor, and
    that would be that this would not apply when Members are at
    home in the district work period. Because very, very rarely I
    think do any staff members have to work late when we are not in
    town. So if you just consider that, and we can talk about
    adding that later when it hits the floor.
        [The statement of Mr. Ehlers follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.011

        The Chairman. Okay. I call the amendment to the regulation.
    Is there any debate? Any debate on any of that?
        Mr. McCarthy. Mr. Chairman.
        The Chairman. Yes, Mr. McCarthy.
        Mr. McCarthy. I appreciate the opportunity.
        Not so much about this, but this would open up the Member's
    Handbook. And the only thing I want to do is take the
    opportunity, because we may be doing some more work on that,
    and praise Mr. Capuano on our Franking Commission what we are
    doing looking on other items when it comes to computers and the
    Web sites that we may be dealing with the handbook as well, so
    there maybe some other stuff to move. And I appreciate all the
    work you have done.
        The Chairman. Okay. Thank you.
        Is there any further debate?
        Without objection, the previous question is ordered. The
    question is on approval of the amendment. All those in favor,
    say aye. Any opposed?
        The ayes have it. The amendment to the Regulations is
    adopted, and without objection the motion to reconsider is laid
    upon the table. The staff is authorized to make the technical
    conforming changes.
        Okay. The next item on the agenda H.R. 3032, a bill to
    amend the Federal Election Campaign Act of 1971 to permit
    candidates for election for Federal office to designate an
    individual who will be authorized to disburse funds of the
    authorizing campaign committees of the candidate in the event
    of a death of the candidate.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.012

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        [GRAPHIC] [TIFF OMITTED] 42897A.014

        The Chairman. H.R. 3032, sponsored by Mr. Jones of North
    Carolina, will assure candidates for Federal office that the
    funds raised by the campaign commission will be distributed
    only in accordance with the express wishes after they are
    deceased. It would permit a candidate for Federal office to
    designate a person to disburse the funds of the candidate's
    campaign committee in the event of the candidate's death. The
    bill will make no other changes in the terms and conditions
    that govern the disbursement of funds under the Federal
    Election Campaign Act.
        I would now again like to recognize the ranking member, Mr.
    Ehlers, for any statements.
        Mr. Ehlers. Thank you, Mr. Chairman, for taking this bill
    up.
        I think one of your staff members commented that this
    really didn't need to be done and anyone could do it. The fact
    is that many Members don't do it, and there have been cases
    where there have been disputes after the fact.
        I have taken care of it myself by just having, when we had
    wills prepared, just having the attorney draft a letter, and I
    indicated in the letter how I wanted the leftover campaign
    funds disbursed, and this would be notarized by my wife and
    myself. But I would much prefer this bill, which is Congressman
    Jones' bill.
        The reason he developed it and came to me is because they
    had the similar situation when his father, who was in office,
    died; and the big question arose who controls where the money
    goes, who decides? And under current law the treasurer has
    total and complete freedom. The treasurer of the campaign has
    total and complete freedom to do whatever he wants with the
    money. That made the Jones family very nervous in terms of what
    could happen, not in their particular case, but in other cases.
        So this is, I believe, a very good bill which will make it
    clear. Each one of us will be given the opportunity to
    designate someone to make the decision on the disposal of our
    leftover campaign funds and instructing the treasurer how to do
    it and how to disburse them.
        It also provides that if you wish to designate two
    individuals in case one of them is deceased--if, for example,
    you name your wife and you and your wife are killed
    simultaneously, then someone else who understands your wishes
    could take over.
        The registration would be with the FEC. And again not
    mandatory. But you would be given an opportunity when you file
    your campaign statement of organization to specify this. It
    would remain on record until you change it or remove it.
        So I think it is a good bill because it removes an
    impending argument that might develop or dissatisfaction with
    the treasurer's discretion when you reach this point. And
    someone said, well, if you don't have faith in the treasurer,
    go get another treasurer. It is a little hard to do once you
    are dead. So I think this is a much better approach to take,
    and I urge adoption of the bill.
        [The statement of Mr. Ehlers follows:]
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        The Chairman. Mr. Capuano, I would like to recognize you,
    because I think that Mr. Ehlers probably incorporated your
    amendment along with one of his. But I know that you wanted to
    say a few words on it because you just can't help yourself.
        Mr. Capuano. It is a good amendment.
        The Chairman. Thank you.
        I would like to backtrack again. I missed an amendment that
    Mr. Ehlers also has, and I would like to recognize Mr. Ehlers.
        Mr. Ehlers. Thank you, Mr. Chair; and I apologize I didn't
    mention it before.
        I have a simple amendment that just clarifies the original
    Jones bill. When I made my comments earlier, I was referring to
    the content of both the Jones bill and my amendment. I would be
    happy to answer any questions anyone might have. But the
    amendment has been placed before everyone.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.017

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        The Chairman. We have no other questions on that amendment.
        All those in favor, signify by saying aye. None opposed.
    Then that amendment also passes.
        Mr. Capuano is recognized. Your amendment was incorporated
    with Mr. Ehlers. We have already voted and passed on that.
        Without objection, the staff are authorized to make the
    technical and conforming changes to H.R. 3032.
        And now I would like to move the committee report
    favorably, the bill H.R. 3032.
        All those in favor, signify by saying aye.
        Any opposed? No.
        The ayes have it; and, without objection, the staff will be
    authorized to make the technical and conforming changes to H.R.
    3032.
        The next order of business today will be consideration of
    H.R. 281, the Universal Right to Vote by Mail Act.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.019

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        [GRAPHIC] [TIFF OMITTED] 42897A.021

        The Chairman. Rather than making an opening statement, I
    would like to recognize the bill's sponsor, Mrs. Davis, to
    explain the bill.
        Mrs. Davis of California. Thank you, Chairman Brady and
    Ranking Member Ehlers. I want to really appreciate your
    bringing this to the committee, H.R. 281, the Universal Right
    to Vote by Mail Act. I want to thank Election Subcommittee
    Chairman Lofgren for her outstanding leadership; and, also, I
    want to acknowledge Ranking Member McCarthy, who has helped me
    talk this through and work with me across party lines.
        Since the Election Subcommittee has already held two
    extensive briefings on this topic, I am going to try and be
    very brief.
        As we all know, this straightforward bill would simply give
    any eligible voter the option of voting by absentee ballot. No
    longer would an antiquated patchwork of State laws prevent
    voters from voting because they have work, family or other
    commitments. No longer would any voter in this country have to
    find the money or the time for a notary to sign an absentee
    request form. No longer would any American voter have to
    compromise personal privacy by having to list vacation
    destinations, medical information or employment details just to
    vote absentee. And no more doctor notes. This bill would level
    the playing field by allowing voters in the States that do not
    have no excuse absentee voting to catch up with the 29 States
    that do.
        As a former school board member and State legislator, I
    certainly adhere and believe strongly in States' rights. But
    let me be clear about this bill. It does not alter State
    absentee processes and time lines. It does not place an undue
    burden on election officials. It does not make them do
    something new. All it does is expand the pool of people
    eligible for something they already do.
        We are a Federal committee and we are not doing our jobs if
    we accept that some States are allowing some people to be more
    eligible to vote than others when we are all voting for the
    same President.
        I wanted to just close by quoting from a letter to the
    editor from the New Orleans area Times-Picayune by a voter
    named Megan Boyle.
        In it she says, I will be out of town during the runoff
    election. Since I will also be out of town during early voting
    the week before, I am required to go to the office of the
    Jefferson Parish Registrar of Voters between 8:30 and 4:30 for
    early voting at the Elmwood location because I live in East
    Bank. I work from 8 to 5, she says, on the West Bank and would
    have to miss work in order to vote. And she underlines, voting
    should not be so inconvenient that a citizen would choose not
    to vote.
        We can wait for every State to adopt no excuse absentee
    voting or we can take what I think is a very simple step today.
        I also want to move forward and just share with you that I
    would accept the amendments from some of my colleagues and have
    agreed to accept Mr. McCarthy's amendment requiring signature
    verification, which is something that most States already do. I
    think that is important, and I certainly would move forward
    with it. I visited our election of voters on numerous occasions
    and watched them do this, and they are professional and
    experienced at it.
        And I am also willing to take Mr. Ehler's amendment
    extending the date of implementation to 2010. I agree that
    States should have time to phase this in, but I hope that many
    would start by 2008, which may be the highest turnout election
    in our Nation's history. Moving to no excuse absentee voting
    will actually assist their processes.
        I hope that my colleagues on the committee will join me in
    passing this important measure, and I want to thank you all for
    your attention on it and the time that you spent in taking a
    look. Thank you.
        The Chairman. Thank you.
        I would like to recognize Mr. Ehlers' for an opening
    statement.
        Mr. Ehlers. Thank you, Chairman Brady, and also thank you
    to Representative Davis for her work on this bill.
        While I personally think it is important that we make
    voting as accessible as possible, my primary concern regarding
    this and other legislation relating to absentee voting is that
    we must put in place at the same time the appropriate
    safeguards to ensure that legitimate votes are not cancelled by
    fraudulent ones. Opening up such a wide breadth of
    jurisdictions to no excuse absentee voting may provide more
    citizens with an opportunity to vote, but it may also present
    those with dishonest intentions a new opportunity to commit
    fraud.
        And I might say I am not castigating absentee voters by my
    statement. It is just that it leads to the opportunity for
    others to manipulate absentee ballots and absentee voters to
    achieve nefarious ends.
        To that effect, I am offering several amendments to the
    bill; and I believe my colleagues on this side of the aisle
    have others to offer. As with all of our elections legislation,
    we must monitor the implementation of these provisions
    carefully to ensure that, in the interest of making voting
    easier, we are not sacrificing the security of our election
    system.
        Thank you, and I reserve the balance of my time.
        Although, Mr. Chairman I have received a letter--I believe
    everyone on the committee has received a letter from the
    National Conference of State Legislators, which has written a
    letter expressing serious concerns about H.R. 281. I ask
    unanimous consent that that letter be placed in the record of
    today's markup.
        The Chairman. Without objection.
        [The statement of Mr. Ehlers follows:]
        [In addition, pursuant to a unanimous consent request by
    Mrs. Davis of California, and Mr. Ehlers on page 143 of this
    transcript, six letters of support and one letter in opposition
    of H.R. 281 follow:]
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        The Chairman. Any other members who would like to make a
    statement?
        I now call up and lay before the committee H.R. 281.
    Without objection, the first reading of the bill will be
    dispensed with. Without objection, the bill will be considered
    as read and open to amendment at any point.
        Any amendments?
        Mr. Ehlers. All right. The first one I have, Mr. Chairman,
    is a very simple one, which the author of the bill has already
    agreed to. This amendment postpones--it is Ehlers Amendment No.
    1. It postpones the effective date of the Act until the year
    2010.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.026

        The Chairman. The gentleman is recognized for 5 minutes.
        Mr. Ehlers. I think it is so simple it will be accepted. I
    won't spend any time discussing it.
        The Chairman. The question is on Mr. Ehlers' amendment to
    the bill. All those in favor, signify by saying aye. Any
    opposed? No.
        The ayes have it, and the amendment is agreed to.
        Any other amendments?
        Mr. Ehlers.
        Mr. Ehlers. Ehlers Amendment No. 2. This amendment provides
    that a State shall, before providing an individual with an
    absentee ballot, pursuant to this Act, require such individual
    to sign under penalty of perjury a statement attesting that the
    ballot was requested voluntarily and without coercion and that,
    should such ballot be voted, it will be voted freely and
    without undue influence.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.027

        Mr. Ehlers. And I move the amendment. I think it is very
    clear and straightforward. It gets at one of the fraud aspects
    that we are concerned about, and it does not in any way impose
    a great burden on the voter. It simply asks them to sign an
    attestation that it has been voted freely and without undue
    influence. That is trying to get at the possibility, as I
    mentioned earlier, of fraud where someone is trying to induce a
    voter to do something wrong. And if they sign this they are
    saying simply no one has tried to unduly influence them.
        The Chairman. Any other questions?
        Mrs. Davis.
        Mrs. Davis of California. I would be happy to speak to
    that.
        I appreciate Mr. Ehlers' concern, but I think that, you
    know, we have--in many, many States that already do have no
    excuse absentee voting, this has not been a problem for them.
    They know that people sign under penalty of perjury and a fine
    and imprisonment for up to 5 years if there is anything in that
    absentee ballot that is not accurate. We don't ask people that
    question under other circumstances. So even though I appreciate
    the intent of it, I certainly don't think that people in States
    that are not included in no absentee, no excuse absentee voting
    today are any less forthright than in other States; and we
    would be putting a burden on them perhaps that is not in other
    States. And so I, in due consideration, don't think that would
    be applicable.
        The Chairman. Mr. Davis
        Mr. Davis of Alabama. Thank you, Mr. Chairman. I will be
    brief.
        I want to echo what Mrs. Davis said and then raise one
    other practical concern to the ranking member. It would seem
    that under your amendment that someone could potentially
    challenge a ballot that didn't have the attestation on it. And
    ordinarily in the normal context obviously no one should be
    unduly influenced in any kind of election, whether it is an
    absentee ballot or not. So it would seem that Mrs. Davis is
    correct that you may be adding an extra layer of certification
    here that is not ordinarily applicable; and, because of that, I
    wonder if someone could potentially challenge a written or
    absentee ballot. Though there was no basis whatsoever to
    question the validity of that ballot, the failure to have the
    attestation could become a basis of challenge; and I am not
    sure if that would be the intent. I am not sure if that is your
    intent or not, and I will yield to you to answer that.
        Mr. Ehlers. Thank you. I appreciate you yielding.
        That is certainly not my intent, and I would assume that
    this would just be--well, just use the example we have in
    Michigan. We are required to sign the ballot that we send in. I
    think almost every State that has absentee voting requires the
    voter to sign the ballot. And, in fact, an amendment we will
    have later will require the local elected officials to compare
    the signature on the ballot with the signature on record with
    the registration just to make sure that they are the same.
        I do not intend for this to be a separate statement which
    requires a separate signature. It is an assumption of mine that
    it would just be under the current statement that the voter has
    to make that they are signing this, that this is their ballot
    and so forth, that they have done it without help. Just add the
    statement under there and they still have one signature, the
    same signature, just adding an additional statement to make it
    clear to the voter that if there is someone leaning over their
    shoulder or someone saying I will give you five bucks if you
    vote this way they recognize they are not supposed to do that
    and certainly wouldn't sign it if they had done it.
        So I don't think it is any greater burden on the voter at
    all. They are still signing it. It just increases the length of
    the statement slightly.
        Mr. Davis of Alabama. I will just reclaim my time.
        I take the gentleman's point in good faith. The only
    concern that I would raise, as you are well aware, a lot of
    these challenges to ballots play out at the local level, county
    level, as opposed to the State level; and it would not strike
    me as being beyond possibility that in future elections that if
    your provision were added that someone who wanted to challenge
    a ballot for whatever reason could at least cite as an
    evidentiary point that the attestation was not signed. So I
    take your point that that is not your intent, but I am
    concerned it could become yet another thing that could be a
    subject of dispute in some elections.
        Mr. Ehlers. If the gentleman would yield again. The
    signature is currently there. They could challenge it at this
    point, too. I don't recall in my years of being involved with
    polling that anyone has challenged on the basis of a lack of
    signature. But it is possible that the clerk of the unit of
    government may just automatically rule them out if they send in
    a document without the signature.
        Mr. Davis of Alabama. Well, reclaiming my time just to
    finish on this point, I agree with you about the need to have a
    signature so someone could attest the person is whom she claims
    to be. I am simply making the additional point that if you have
    another requirement that someone attest that they weren't
    subject to undue influence, the failure to make that
    attestation could potentially be cited as proof if that ballot
    were challenged. And I would just--I don't want to prolong
    this, but just by making that point that that could become an
    extra layer of contest, and I think that would not be our
    intent as supporters of the bill.
        Mr. Ehlers. If I may, if you will yield to me one last
    time, I just would reiterate this is just an additional
    statement, not an additional signature. I don't think it
    provides any additional grounds for rejecting it. If the
    signature is there, what can you say? They are not going to
    stop it for that reason.
        I yield back.
        The Chairman. Anybody else?
        Mr. Capuano.
        Mr. Capuano. Mr. Chairman, I respect what the ranking
    member is trying to do, and I am not worried about an extra
    signature. Have them sign 10 times. My concern is that the
    basic--if someone is under coercion, you are forcing them, for
    all intents and purposes. If somebody has a gun to my head and
    says ``sign this'', I am signing it; and now I have broken the
    law because I have committed perjury.
        I would argue that if the goal was to stop coercion,
    inappropriate activity, then we should go after the people who
    are causing the inappropriate activity and make it a crime to
    coerce someone. And that I think is fine. But to make, under
    the scenario, the victim also now a criminal strikes me as
    targeting the wrong person.
        And as far as--I think there should be some discussion,
    what do you mean by coercion? I know what it means in the
    vernacular, but when you get into a law I don't think that
    taking a bribe is coercion. It is a bribe, but it is not
    coercion. Is it coercion when you are getting an absentee
    ballot because somebody gave your cousin a job? What is
    coercion?
        And I am not arguing that we shouldn't have that
    discussion. I think it is a fair discussion. I agree with you.
    I am not looking to allow or encourage or enable anybody to
    coerce anyone. I totally agree with that. But I don't think
    this does it.
        What this simply does is, if someone is truly under
    coercion, gun to the head, they are going to sign this thing.
    And now they have broken the law. They have committed perjury.
    And I don't think that is the right goal. I think we should
    have an amendment at some point along the process that says, if
    you coerce someone, you are the one breaking the law, not the
    victim.
        Mr. Ehlers. Will the gentleman yield?
        Mr. Capuano. I certainly do.
        Mr. Ehlers. So far as I know, that is already contrary to
    the law.
        Mr. Capuano. I think it is, too.
        Mr. Ehlers. I would hope that anyone who is coerced would
    immediately report the crime to the appropriate authorities or
    somehow refuse to sign it. I know people feel strongly about
    the secret ballot and not being coerced. My wife doesn't let me
    see who she votes for, and I have been unable to coerce her.
        Mr. Capuano. My wife requires me to show who I am voting
    for. I have to get approval.
        Mr. Ehlers. Well, so far as I know, my wife may vote
    against me every time, and I don't expect that she has, unless
    she wants me to stay home more.
        But my point is simply coercion is going to be rare. But
    this will just call the voter's attention to it and say, hey,
    if you are coerced, don't sign it; or if you are forced to sign
    it, report it.
        Mr. Capuano. In that case, I have no problem. But I don't
    like the concept of committing perjury, under the pains and
    penalties of perjury, and now subjecting them to criminal
    penalties. I have no problem with putting a statement there
    saying, yeah, I signed this on my free will. That doesn't
    bother me. That is just another statement. I have no problem
    with it.
        If the idea is to draw the attention to the voter, that is
    fine, but that can be done by a statement, as opposed to
    signing something under the pains and penalties of perjury,
    which is a different matter.
        Mr. Ehlers. Mr. Chairman, I recognize the arguments. I
    guess we can put it to a vote. But I would be happy to pursue
    this with the other committee members later.
        The Chairman. Certainly.
        Mr. Davis of Alabama. Will the gentleman yield for just one
    point? Mr. Capuano, I think actually in some way is
    underscoring a point that I made. I take your point that you
    are not requiring a separate line of attestation and a separate
    signature. You have made that clear. But I think Mr. Capuano's
    point is still important.
        This may seem like a farfetched scenario to the ranking
    member, but I could imagine that in a contested election some
    individual could say I was part of a meeting or part of a
    hearing and these folks said they were going to go out and get
    these absentee ballots out at a nursing home and it sounded to
    me if they were going to coerce these older people to sign
    these ballots.
        And, right now, under the current law, under this bill as
    it currently stands, no one could really challenge a ballot on
    the theory that they had proof of coercion unless there was
    some direct problem with the ballot itself. Because you are
    adding a requirement that some one state under penalty of
    perjury that they were not coerced, arguably someone making a
    false statement would subject themselves to a challenged
    ballot. That controversy could be triggered if someone made an
    allegation that a group of people were engaging in coercive
    activity.
        And, again, it may seem farfetched to us today, but in this
    day and age of hyperlitigation and partisanship back and forth
    I could imagine someone saying, ``I know that the citizens for
    good government in Johnson County, Texas, are trying to coerce
    people to vote, so therefore I am going to challenge all of
    these ballots because this is where I know they were working
    that day.'' And it becomes one more thing that could be
    challenged in the context of an election. You couldn't do that
    kind of a challenge today.
        And, with that, I would yield back.
        The Chairman. The question one is on Mr. Ehlers' Amendment
    No. 2 to the bill. All those in favor, signify by saying aye.
    All those opposed, say no. No.
        Mr. Ehlers. Ask for a roll call vote.
        The Chairman. I would like to have a roll call. Will the
    clerk please call the roll.
        The Clerk. Ms. Lofgren.
        [No response.]
        The Clerk. Mr. Capuano.
        Mr. Capuano. No.
        The Clerk. Mr. Capuano votes no.
        Mr. Gonzalez.
        [No response.]
        The Clerk. Mrs. Davis of California.
        Mrs. Davis of California. No.
        The Clerk. Mrs. Davis of California votes no.
        Mr. Davis of Alabama.
        Mr. Davis of Alabama. No.
        The Clerk. Mr. Davis of Alabama votes no.
        Mr. Ehlers.
        Mr. Ehlers. Aye.
        The Clerk. Mr. Ehlers votes aye.
        Mr. Lungren.
        Mr. Lungren. Aye.
        The Clerk. Mr. Lungren votes aye.
        Mr. McCarthy.
        Mr. McCarthy. Aye.
        The Clerk. Mr. McCarthy votes aye.
        Mr. Brady.
        The Chairman. No.
        The Clerk. Mr. Brady votes no.
        The Chairman. The ayes are three. The nays are four. The
    amendment fails.
        Mr. Ehlers, do you have another amendment.
        Mr. Ehlers. Yes.
        The Chairman. The Chair recognizes Mr. Ehlers for an
    amendment.
        Mr. Ehlers. Sorry for the delay, Mr. Chairman. Somehow my
    things got out of order in the notebook.
        I offer Ehlers Amendment No. 3. This amendment provides
    that no provision of this Act shall restrict the right of any
    State to continue to enforce any condition or requirement
    concerning the eligibility of an individual to obtain an
    absentee ballot by mail provided that such condition or
    requirement is in effect as of the enactment date of this Act.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.028

        Mr. Ehlers. Mr. Chairman, that is basically a response to
    the letter I previously entered into the record from the
    National Conference of State Legislatures who are objecting to
    us imposing more Federal requirements on local and State
    elections.
        As you know, for many, many years all the elections in this
    country were controlled by State or local officials; and it
    wasn't until we passed HAVA that we had direct Federal
    involvement in running elections. And theoretically our only
    basis for doing that is for Federal candidates.
        The folks from the National Conference of State
    Legislatures are basically saying, look, we have been running
    elections for over 200 years. We know how to do it. We don't
    like the fact that you are going to tell us how to do it. And
    so this amendment would honor that protest by saying we will
    grandfather in all those who are currently doing it in their
    own way and not following the principles of this bill; and that
    constitutes, I believe, some 22 States.
        And I would hope that eventually they would agree with all
    the provisions of the bill, but I think we really are going to
    have to work with them for a while and point out to them the
    advantages of Congresswoman Davis's bill. And eventually I
    think they would be on board.
        But as a former elected official at the local level and the
    State level, I know how much resentment there is against the
    Federal Government coming in and saying, we are from the
    Federal Government. We know better. You are going to do it our
    way. So this is an attempt to honor that and just say, okay,
    you can keep doing it your way, and then continue to work with
    them to try to persuade them that our way is better. So I offer
    that amendment.
        The Chairman. The Chair recognizes Mrs. Davis.
        Mrs. Davis of California. Thank you, Mr. Chairman; and,
    once again, I appreciate Mr. Ehlers's concern here.
        I was, obviously, a member of NCSL for a period of time.
    But I think that what we are saying is that we want people to
    be able--it is the ``who''. We are not telling them how. We are
    just telling them who. People should be able to do this. And
    what I think your amendment does is essentially gut the bill.
    Because it says if you have to list excuses, if people have to
    engage in that process, that we are not going to ask them to
    proceed at least until initially 2010, I think, to bring them
    on line with other States.
        And in Michigan, of course, people would still have to
    respond in terms of whether or not they can attend because of
    tenets of their religion, whether they are going to be out of
    the community for the entire time on election day. There are
    just a number of things that they have to do, and it is in the
    best interest of moving this forward to not allow States to
    continue to do what they have always been doing without pushing
    them forward. And I think that is what we are doing. We are
    doing it within a reasonable time frame as we accepted your
    amendment.
        And I think that NCSL will come on board. I think they
    weren't paying attention earlier. They are very happy to work
    with us. We have spoken with them, and I think that we can move
    them along as well. I think they are very happy to do that.
        Mr. Ehlers. Will the gentlewoman yield? Will you yield?
        Mrs. Davis of California. Yes, sir.
        Mr. Ehlers. Thank you for yielding.
        I recognize that argument, and I have some sympathy for it.
    But I would much prefer that we work out the problem earlier,
    rather than simply impose this on them.
        I have great respect for NCSL, and I don't think they wrote
    the letter in haste or anger or by accident without knowing the
    facts. I think that it accurately reflects their feelings, and
    I would much prefer that we adopt the amendment and over the
    course of a few years work with them to change the systems they
    are using. In other words, I am saying let us use a soft
    leather glove instead of a boxing mitt to try to change their
    laws.
        I yield back.
        The Chairman. Any other discussion?
        The question on Mr. Ehlers' Amendment No. 3 to the bill.
    All those in favor, say aye. All those opposed, no. No.
        In the opinion of the Chair the noes have it.
        Mr. Ehlers. I would ask for a roll call.
        The Chairman. A roll call vote is requested. The clerk will
    call the roll.
        The Clerk. Ms. Lofgren.
        [no response.]
        The Clerk. Mr. Capuano.
        Mr. Capuano. I am a no.
        The Clerk. Mr. Capuano votes no.
        Mr. Gonzalez.
        [no response.]
        The Clerk. Mrs. Davis of California.
        Mrs. Davis of California. No.
        The Clerk. Mrs. Davis of California votes no.
        Mr. Davis of Alabama.
        Mr. Davis of Alabama. No.
        The Clerk. Mr. Davis of Alabama votes no.
        Mr. Ehlers.
        Mr. Ehlers. Aye.
        The Clerk. Mr. Ehlers votes aye.
        Mr. Lungren.
        Mr. Lungren. Aye.
        The Clerk. Mr. Lungren votes aye.
        Mr. McCarthy.
        Mr. McCarthy. Aye.
        The Clerk. Mr. McCarthy votes aye.
        Mr. Brady.
        The Chairman. No.
        The Clerk. Mr. Brady votes no.
        The Chairman. The ayes are three. The nays are four. The
    amendment is not agreed to.
        Mr. Ehlers. Mr. Chairman, that is the first time I have
    ever lost a vote because a ghost pops out of the closet.
        The Chairman. The Chair would like to recognize for an
    amendment Mr. McCarthy.
        Mr. McCarthy. Thank you, Mr. Chairman.
        I want to first thank Congresswoman Davis for working on
    this legislation.
        I have an amendment. It would be McCarthy Amendment No. 2.
    This amendment provides that the State shall implement a voter
    signature verification system, that the voter signature on each
    absentee ballot shall be verified by such system prior to the
    acceptance and processing of any voted absentee ballot cast
    pursuant to this Act.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.029

        Mr. McCarthy. It is mainly saying, and one thing that
    happens within California, in our hearing that we found the
    biggest form of fraud that you ever get is with absentee
    ballots. Because a person can go and apply, never seeing an
    individual, put in an address, and apply for an absentee,
    never, ever making a verification.
        So what happens here in this process would be, much like
    within California--and in Michigan they are going to a
    digital--that an absentee ballot comes in. You have to sign the
    back of the ballot. The individual at the elections office that
    is working year round, not a one-day individual, pulls it up,
    if they have training, and digitally would see the signature of
    the registration and verify that against the absentee ballot
    outside signature before you open up and cast the ballot.
        So it is a step of protecting the fraud which I know
    individuals have the fear of within here. I think this goes a
    long way to help in that procedure, and we allow the States to
    adapt signature verification which they select.
        I would ask for a vote.
        The Chairman. The Chair recognizes Mrs. Davis.
        Mrs. Davis of California. I appreciate Mr. McCarthy's
    amendment, and I agree with it. Thank you.
        The Chairman. You agree with the amendment? You agree with
    the amendment being accepted?
        Mrs. Davis of California. Is that actually No. 1?
        Mr. McCarthy. That was No. 2. I just went out of order
    because I wanted to start on a positive note.
        Mrs. Davis of California. Okay. But it is 1 on mine.
        Mr. McCarthy. Is that 1 on yours? It is 2 on mine.
        The Chairman. They do that from time to time, and it works
    from time to time, but we are accepting it. I think this is the
    one that we are accepting.
        Mr. McCarthy. If we accept both, that is all right with me.
        The Chairman. All those in favor accepting--wait. This is
    No. 2. He is taking the signature verification, which is No. 2.
    All those in favor of the amendment, signify by saying aye. Any
    opposed, no.
        The ayes have it. The amendment is agreed to.
        Now we have before us McCarthy amendment No. 1.
        Mr. McCarthy. Thank you, Mr. Chairman.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.104

        Mr. McCarthy. Now this amendment takes from kind of what
    Mr. Davis was saying earlier. When you deal with legislation
    like this, there could be some unintended consequences based
    upon the language within the bill. And the intent with the
    hearing and what I have heard from Mrs. Davis has been you have
    these roadblocks for individuals to get an absentee ballot
    based upon the process that they are going to be out of town.
    New York makes a doctor do seven different ones. In Virginia,
    you have to sign your business hours and your business address.
    Those are little roadblocks, so we are trying to knock that
    down.
        But I would never want an individual to take--and if you
    read the language in page 3 of the bill, line 5 through about
    line 9, it says, the State may not impose any additional
    conditions or requirements on the eligibility of the individual
    to cast the vote in such election.
        What could happen here is kind of what Mr. Davis was
    saying. Someone could say that with this bill we are now
    waiving any rights of the States to have eligibility on a
    person to cast the ballot.
        Because I am viewing it as twofold, I want to knock down
    any roadblock a person has to apply. I still want to empower
    the State to be able to check before the ballot is cast, is
    this person eligible to do that vote. I don't want to take away
    any rules or laws that current States have.
        As we have these other hearings, we know Indiana has a
    different law on the eligibility because States have the power
    to do that on who is eligible to vote in that process. So I
    believe this clarifies the intent of what Mrs. Davis was trying
    to do, and it clarifies what I believe we were trying to do
    through the hearings and still empowers the State to have that
    ability for eligibility in what they have and someone take the
    language here and applies it different than what we are trying
    to. That is what the intent of this amendment does.
        The Chairman. I thank the gentleman.
        Mrs. Davis.
        Mrs. Davis of California. I appreciate that, Mr. McCarthy.
    The bill is really silent on that, and so I don't think that
    there is anything that is added here.
        I am not sure the clarification is needed to suggest that
    the States couldn't do that if they have already chosen to do
    that. What we are just trying to do is define the fact that
    there is no excuses for absentee voting and that we want to
    verify, of course, the fact that that is the person and that is
    what most States are doing. So it is really silent on that. I
    don't think it puts any more pressure on States to either
    increase that or to take that away.
        Mr. McCarthy. If the gentlelady would yield for just maybe
    a colloquy here. In lines 7 and 8, if you read on page 3 of
    your bill, a State may not impose any additional conditions or
    requirements on the eligibility of the individual to cast the
    vote. By using the word ``cast'' the vote--and this may be a
    place where Mr. Davis, I believe he is an individual who has a
    great brain when it comes to legal issues and looking down the
    road--by using the word ``cast'' the vote, couldn't we say--
    couldn't someone take this from a legal manner and wipe away
    any requirements that a State may have by basing on casting
    that vote, such as a person would say, because you applied by
    absentee mail, that you mailed in your voter reg, some States
    say the first time you do that and you are a first-time voter
    they just want to check an ID ahead of time. That is to apply
    for--to apply to even register to vote within there.
        Could you not take that by using the word ``cast'' the vote
    and take this a step further beyond the intent of what this
    bill was really trying to accomplish? That is my only fear, the
    language that we use.
        Mr. Davis of Alabama. Will the gentleman yield?
        Mr. McCarthy. Yes.
        Mr. Davis of Alabama. I am trying to understand the
    gentleman from California's point. Certainly the intent of the
    bill that I have co-sponsored and that Mrs. Davis has
    introduced is that, obviously, we are not trying to prevent
    States from putting any normal requirements on who is eligible
    to vote. The bill is simply saying that there are no excuses
    any longer required for absentee voting.
        So a State can't say you have to prove that you are not
    going to be in the jurisdiction. A State can't require you to
    put forward any proof as to why you should be able to vote
    absentee. You are just allowed to do it by mail.
        So I am not following the gentleman's argument. Is it your
    contention that the language in lines 7 and 8, 9 and 10? I will
    yield to the gentleman, because I am not clear what it is you
    are saying that it does, frankly.
        Mr. McCarthy. I am saying we have a couple of cases before
    the Supreme Court. We have States that require different--just
    like we had a hearing the other day. One State would put on
    their voter reg requirements asking if somebody is a citizen or
    something else or if you are a first-time voter registration
    and you are doing it by absentee mail, you have to show an ID.
        If I used the word ``cast'' the vote--because I believe
    there is two processes in this. First, you put in an
    application for voter registration by mail. That is one action.
    Then when you send it in and you cast a vote, that is the
    second action. I believe this bill is dealing with the voter
    registration knocking down the roadblocks to getting that
    application to voting by mail. By using the word ``cast'' the
    vote, I believe this bill is going further, that someone could
    take that language, go beyond the intent of what we meant this
    bill to do and now apply that to other abilities for a State to
    use anything they believe on the eligibility to be able to be
    registered to cast the vote to go further. That is my fear.
        Mrs. Davis of California. I think it is still really--I
    think it confuses it more than anything else, and I think that
    the intent here is to make it clear that the State can't impose
    additional conditions. I am still unclear exactly what you are
    trying to do.
        Mr. McCarthy. I have the fear----
        Mrs. Davis of California. It adds an extra burden that is
    not available for people who vote in person, and I think the
    idea is to make sure that it is----
        Mr. McCarthy. This would take away all the burdens, but it
    would also say from the intent that you keep the integrity of
    it. So can I take this bill and now say a State goes out, such
    as Indiana and others, and has to have proof of citizenship and
    others and take this bill to say they no longer can do that.
        Mr. Davis of Alabama. Well, if the gentleman would yield,
    the intent of the bill is to, in a Federal context, create
    something close to a nationalized standard. So if the goal of a
    State is to put some extra layer in place, then I think the
    bill does seek to undercut that. That is a policy judgment the
    bill seeks to make.
        I think Mrs. Davis is exactly right. The very specific
    example you give, your argument is that the kind of restriction
    you identify doesn't go to eligibility, that it goes to
    verification. Frankly, that is the kind of argument U.S.
    District Courts resolve all the time.
        The fact that the bill is silent on that point I suppose
    could be litigated or debated. But the clear intent of the bill
    is to say that if you want to vote by mail you can do it.
        Now, I think I understand your point. Your point is that a
    State may want to go beyond that and put some extra
    verification means in place. But, frankly, one response to that
    is, I doubt very many States have those kinds of provisions, so
    it is hardly a prevailing national standard and it doesn't
    appear to trouble us too much that most States don't have that
    now.
        And the second and last point that I would make is, once
    again, I am certain there could be some basis if a State wanted
    to put some extra verification requirement in place. But, once
    again, I think the bill, frankly, would err on the side of
    having a nationalized standard for voting by mail.
        Mr. McCarthy. I think maybe if we stated publicly the
    intent of the bill that in no way if someone votes by mail that
    they would get to waive any requirements that a State would put
    on all voters, such as if I register to vote and they had some
    requirement on the registration, I am thinking more in the
    tenth amendment here, that somehow you had to prove something
    to be a registered voter whenever you meet their criteria. I
    met it. Somehow if I voted by mail I was able to waive that.
        And that was my only fear, by using the word ``cast''. And
    if that is not your intent, which I don't believe it to be, I
    believe the intent to be--and I support any of these
    roadblocks.
        People are busy. They want to apply for an absentee
    application. Why do we make it so difficult that I have to say
    not only am I sick but my doctor is going to sign it and
    someone is going to notarize it? I can't vote that day. I am
    going to vote by mail. I am going to have a verification, so I
    take away from the fraud. That is the intent of the bill, not
    to change the eligibility that the State can put on anybody
    else.
        Mrs. Davis of California. And, Mr. McCarthy, I appreciate
    that. Because, basically, that is what we are trying to do, to
    keep it a clean bill in that regard. And I think when we add
    additional language that opens things up in a different way,
    goes a different direction, then we begin to confuse the bill.
    And that is why I think if we can stick to the excuses issue
    that is what the intent of the bill is.
        Mr. McCarthy. Okay.
        Mrs. Davis of California. It really doesn't speak to the
    other issues. That is really--States, actually, as we know with
    Indiana, can do something. They may end up hearing that in the
    courts, but at the same time they can do that. That is their
    option.
        What we are trying to do is deal with a pretty narrow issue
    here, which is don't impose the excuses on the individual who
    chooses to vote if they are going to vote absentee.
        Mr. Davis of Alabama. If the gentleman would yield, just to
    reinforce Mrs. Davis' point. Your amendment goes much further
    than you would need to go. Perhaps if you were trying to add
    some report language about the intent of the committee, but you
    are trying to remove altogether one of the most important
    sections in the bill.
        If you take this section out, as you purport to do--you are
    not trying to slice it. You are trying to move it altogether.
    If you remove the subsection A altogether, then any State could
    go in and interfere with eligibility or--I am sorry--in effect
    put an excuse requirement in place.
        This provision of the bill is the only thing that preserves
    the no excuses character of the bill. So if you remove this
    particular section there is almost no point in having this
    bill. That's why I say your amendment goes much further than it
    needs to.
        Mr. McCarthy. That is not my intent.
        The Chairman. We are going to wind this down now. It has
    gone much past 5 minutes. But go ahead. I will let you have
    your answer.
        Mr. McCarthy. Well, I appreciate the chairman indulging us.
        What I would do is I would not ask for a vote on my
    amendment. Having Mrs. Davis state what the intent is, and I
    think that is really for the public to know putting it out
    there, I would just like to work with you. Because I think, in
    the end, maybe it is changing a language of a word so it is
    clarified further, but I will work with you as the bill moves
    forward. And I appreciate the dialogue and the colloquy it
    allowed.
        The Chairman. Does the gentleman withdraw his amendment?
        Mr. McCarthy. Yes.
        The Chairman. Thank you. I now would like to recognize Mrs.
    Davis for the purpose of offering a motion.
        Mrs. Davis of California. Mr. Chairman, I move the
    committee report the bill favorably to the House as amended.
        Mr. Lungren. Mr. Chairman, I wanted to strike the requisite
    number of words to be able to speak. I haven't spoken on this
    yet.
        The Chairman. I apologize. How could I overlook you? You
    can certainly speak.
        Mr. Lungren. Thank you very much, Mr. Chairman.
        When Mrs. Davis came to me on this bill, I decided to take
    a serious look at it, not the least of which reason is that, in
    1990, when I ran for Attorney General in California, I actually
    lost on election day but won with the absentee ballots.
    Subsequent to that, my opponent supporters had six different
    lawsuits to try and invalidate 600,000 absentee ballots because
    the election officials in those counties had followed the
    advice given to them by the Secretary of State which turned out
    to be somewhat erroneous.
        I declared a victory 13 days later. My opponent conceded
    two and a half months later, just before I was sworn in. So I
    have a strong place in my heart for absentee ballots.
        However, I am concerned about the concerns raised by Norm
    Ornstein, a congressional scholar, about absentee ballots. He
    has indicated that once a ballot leaves the security that is
    provided by the traditional polling place it is much more
    difficult to guarantee that the intended person is voting his
    or her selection, is made without outside or undue influence
    and that the voted ballot makes it safely back to the elections
    official for tabulation.
        Additionally, I am old enough to remember a TV show when I
    was a kid called Father Knows Best. It sounds to me like this
    is the father or the mother of all governments, the Federal
    Government knows best.
        I was raised on the idea that our States are supposed to be
    laboratories of democracy, meaning that they could have
    different approaches to the same end. And in the very first
    finding in this bill we make a blanket statement, the inequity
    of voting rights exist in the--an inequity in voting rights
    exists in the United States because voters in some States have
    the universal right to vote by mail, while voters in other
    States do not. That is a flat statement that because some
    States make it far easier for absentee ballots than others,
    therefore there is inequity which exists. I don't accept that.
        There is something we are losing in this country called the
    communal nature of this country, the idea that we are all in a
    country together. That while we have other things to do maybe
    it is important enough for us to take the time to vote. That is
    to actually go and vote as a communal activity, where you go
    down to the polling place and you actually exercise your right
    to vote and you see other Americans voting.
        And what we are saying is that is a quaint idea that has no
    justification. Not only are we saying there is no
    justification, we are saying that is a quaint idea that is now
    going to be illegal because we know best.
        And it is tough enough in this country made up of people
    that come from all sorts of backgrounds, all sorts of
    ethnicities, all sorts of religions, all sorts of cultures. We
    are, by and large--with the exception of our Native American
    friends, we are, by and large, sons and daughters and
    descendants of people from other countries. We are basically a
    country of immigrants; and we need certain things, certain
    anchors to hold us together. And I think the grand exercise of
    the right to vote exemplified by people coming together at the
    polling places is one of those symbols that assists in that.
        Now some people just can't be able to do that. But what we
    are saying here is don't even make an effort to do that. We on
    the Federal level have decided that no excuse absentee ballots
    is the preferable way of doing things.
        And I appreciate the fact that it is more convenient. I
    appreciate the fact it means that you don't have to make the
    same sort of effort to try to get there. But, my golly, if we
    don't think in this country it is worth making an effort to
    vote that may be inconvenient, are we depreciating that
    exercise in our constitutional democracy?
        So, with all due respect, I looked at your bill, I
    understood what you were trying to do, and I understand what we
    have done in California. I have benefited from absentee
    ballots. But I just find it hard for us to make the decision
    that this is, as a matter of law, the preferred way of doing
    things.
        The Supreme Court has made it very, very clear that there
    is a right to vote, as there should be. But as far as I know
    the Supreme Court has never said or ever suggested that we have
    a right to absentee ballot. And I know that is what we are
    saying here, and I just think it is another example of
    overreach and that we may not know best. I know that is a
    terrible thing for us to consider as Federal elected officials.
    But I found that to be the case at times when I was a
    California Attorney General.
        So with all due respect to the gentlelady's efforts and her
    acceptance of amendments on our side of the aisle, and I
    appreciate that, I just can't support a bill that makes that
    absolute declaration that there is an inequity because some
    States have made the determination we ought to encourage people
    to actually go to the polls unless they cannot make it.
        So, with that, I am happy to yield back the balance of my
    time.
        The Chairman. I thank the gentleman and now recognize the
    gentlelady from California.
        Mrs. Davis of California. Thank you, Mr. Chairman.
        And I just want to respond really briefly, because I think
    that there is no attempt in this bill to say to people that
    this is not an important communal activity. I go to the polls.
    You go to the polls. But do you know what? Under existing
    conditions in some States, a Member of Congress would have to
    put in a special letter saying that they need an excuse in
    order to vote by mail. So it is inequitable.
        I think in Mr. Ehlers' State if you are 60 years old that
    is an excuse. If you are 59 or under, it is not. I mean, what
    is equitable about that?
        So I think that we need to be careful that we narrow this
    bill as we have done. We are allowing people who have
    circumstances that they can't necessarily control and get to
    the polls. We want to make that equitable for everybody. This
    in no way undermines the communal responsibility. In fact, we
    know that in those States that have gone to vote by mail it has
    actually created more interest in voting. It hasn't depressed
    voting there.
        So I would just hope that you would perhaps over a period
    of time take another look at this, and maybe it will help you
    out in the next election as well.
        We wouldn't want to go backwards in California. We are not
    asking people to do that. But, essentially, by saying we are
    not going to move forward, we are saying to some States that
    maybe they don't need to do this, and I think they have made
    the determination that they do. We just want to make it
    equitable for all States to be able to do this. And we are
    giving them plenty of time. I think we are putting the security
    provisions in there, and I hope that we can move forward with
    this.
        The Chairman. Will the lady make a motion?
        Mrs. Davis of California. Mr. Chairman, I move the
    committee report the bill favorably to the House, as amended.
        The Chairman. All those in favor of the motion, signify by
    saying aye. All those opposed, no.
        In the opinion of the Chair, the ayes have it. The motion
    is agreed to. Without objection, the motion to reconsider is
    laid upon the table and the bill reported to the House. Without
    objection, the staff are authorized to make technical and
    conforming changes to H.R. 281.
        Mr. Ehlers. Mr. Chairman, I reserve the right and I would
    like to move that I reserve the right to include minority views
    in the final report to the House. And also simply want to
    comment that I am still very concerned about the concerns
    raised by local governments to the National Council of State
    Legislatures. I hope that we can resolve that as we go through
    the process, because, otherwise, I presumably would vote no on
    the floor.
        Thank you.
        The Chairman. Members will have 2 additional days provided
    by the House rules to file views.
        Next, the committee will turn to H.R. 5036, the Emergency
    Assistance for Secure Elections Act of 2008.
        [The information follows:]
        [Additionally, pursuant to a request by Mr. Ehlers under
    unanimous consent on page 143, a letter pertaining to H.R. 5036
    follows:]
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        The Chairman. I now recognize myself for an opening
    statement. This legislation will help States ensure that the
    2008 general elections will have a paper record and elections
    across the country can be audited. This legislation is
    voluntary for States and provides funds to reimburse States for
    the cost if they choose to opt in.
        A substitute amendment will be offered by Chairwoman
    Lofgren of the Subcommittee on Elections as several
    improvements to the original legislation.
        And I would now like to recognize Ranking Member Ehlers for
    his opening remarks.
        Mr. Ehlers. Thank you, Mr. Chairman.
        I thank you for your efforts to continue our discussion on
    how to best secure our Nation's elections systems; and I also
    commend Congressman Holt for his passionate work on this issue,
    as I know he has been very frequently and constantly involved
    with the Administration of Federal Elections.
        While this bill, H.R. 5036, authorizes reimbursement for
    the use of paper-based voting systems, an important distinction
    that separates this bill from previous legislation is that
    States are not required to use paper ballots or auditing but
    only request financial support should they choose to do so. In
    other words, it is an opt-in proposal.
        With only 8 months remaining before the general election,
    had paper balloting been mandatory, chaos would have likely
    been the result at polling places across the Nation. Instead,
    we will provide States an opportunity to select the method that
    best fits their needs; and that again is in accord with my
    attempt to respect the abilities and the rights of local and
    State government.
        It is important, however, that we evaluate the
    effectiveness of this in all Federal elections legislation to
    ensure that we are supporting States in the execution of their
    responsibilities with respect to Federal elections.
        I look forward to continuing the work with Chairman Brady,
    the members of the committee and Congressman Holt to ensure
    that all citizens will continue to cast a vote with confidence,
    that their voice will be heard and that their voice will not be
    muted by illegally cast ballots. In that spirit, I will be
    offering several amendments that I believe will improve the
    bill.
        And, Mr. Chairman, I would just comment, I understand that
    your side is willing to accept most of the amendments; and so
    we may be able to save a lot of time by just not going into a
    detailed discussion on those, even though I can do it if you
    wish.
        [The statement of Mr. Ehlers follows:]
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        The Chairman. I agree to that, sir.
        Mr. Ehlers. I will yield back.
        The Chairman. Does anybody else have any opening
    statements? I now call up H.R. 5036, the Emergency Assistance
    for Secure Elections Act of 2008.
        I would now like to recognize the gentlelady from
    California, Ms. Lofgren, the Chair on the Subcommittee on
    Elections, to offer an amendment.
        Ms. Lofgren. Thank you, Mr. Chairman.
        I have an amendment in the nature of a substitute. I don't
    know if the clerk is prepared to read that.
        The Chairman. The amendment has been distributed.
        [The information follows:]
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        The Chairman. Without objection, the reading of the
    amendment will be dispensed with, and the gentlelady from
    California is recognized for 5 minutes.
        Ms. Lofgren. Thank you.
        I offer this amendment in the nature of a substitute to
    meet some of the concerns expressed by various parties,
    disability groups, as well as State and local governments over
    the measure that was reported out by the committee last year.
        I want to commend Congressman Holt and his bipartisan co-
    sponsors for their continued dedication to the issue of
    election reform.
        In 2008, the election in November is quickly approaching;
    and options must be provided to ensure the integrity of the
    vote. This substitute makes several changes to the legislation,
    while keeping the core purpose of the bill, providing a voter
    verifiable paper and auditable paper trail.
        It reimburses jurisdictions for retrofitting paperless
    touch-screen voting machines, or DREs, with systems that
    produce a voter-verifiable paper record.
        It allows for reimbursement for jurisdictions to obtain
    backup paper ballots in the event of failure of electronic
    voting systems.
        It authorizes reimbursement for jurisdictions which conduct
    a manual audit of the Federal and any State and local election
    in November of 2008 in no less than 2 percent of the precincts.
    This is, however, 100 percent optional. Jurisdictions can pick
    and choose. It is not all or nothing.
        I would note also that the funding has been changed to such
    sums as necessary, recognizing that this is going to be an
    appropriations issue more than an authorization issue.
        I will say that while the NCSL, NACo, et cetera, have not
    come out yet in support of the bill, they have been part of the
    discussions on the compromise from day one. It is my
    understanding they do not oppose the bill. The changes we have
    made reflect some of their concerns, particularly the changes
    to the audit section of the DRE retrofitting and the use of
    funding for backup paper ballots.
        This is not a mandate. It is optional. And while we
    recognize concerns, significant compromises were made to the
    bill through the substitute.
        And I understand that Mr. Ehlers is prepared to offer four
    amendments; and, to expedite, I would note that his amendment
    about jurisdiction involved, his amendment requiring the
    election officials to secure the ballots, and his amendment
    requiring election officials conducting the hand count to be
    split equally down party lines of the two most parties
    receiving the greatest number of votes is acceptable to us.
        You may want to introduce them, but we would assume that
    you would accept our agreement to those amendments and we could
    just discuss the one amendment that we do have some concerns
    about, not the intent but the technicality. So, with that, I
    hope we can move forward on a bipartisan basis.
        Mr. Ehlers, in particular, reached out to me before the
    recess to see how we could work together in a collaborative
    way; and it is a lovely way to work in this committee. And with
    that, Mr. Chairman, I would yield back.
        The Chairman. I understand that we have three amendments
    that we may agree to vote on en bloc.
        Mr. Ehlers. Yes. Mr. Chairman, I would suggest that we vote
    on the Ehlers Amendments 1, 2 and 4 en bloc.
        [The information follows:]
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        The Chairman. 1, 2 and 4 en bloc. All those in favor,
    signify by saying aye to vote only 1, 2 and 4 amendments en
    bloc. Signify by saying aye.
        Any opposed? No.
        1, 2 and 4 are agreed to.
        And we now have Amendment No. 3.
        [The information follows:]
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        The Chairman. And, Mr. Ehlers, I will now recognize you.
        Mr. Ehlers. Thank you, Mr. Chairman; and I think I can
    change this one so that it is acceptable, too. I didn't
    realize----
        The Chairman. We will certainly entertain that motion, sir.
        Mr. Ehlers. Amendment No. 3 provides that--because this
    bill provides that elections officials can decide to use paper
    and do a hand count, this amendment states all ballots shall
    also be run through a tabulating machine. Our intent was not to
    have ``shall'' but to put--to have ``may'', just to indicate
    that they could. And let me give the reason for this.
        It is not to double-check the hand count. It is not to
    double-check the hand count. The intent was, as a scientist, I
    am sitting here and saying, this is a great experiment. If we
    have a bunch of people hand counting and if there are also
    tabulators handy there, why don't they run them through the
    tabulators, too, and we will get a comparison of the two.
        So I would suggest that if we change the ``shall'' to a
    ``may'' we accomplish what I was trying to do, which is simply
    to make this into an experiment. The hand count, as I
    understand, would still be the official one, but the main count
    would be to check on the accuracy of the count.
        Ms. Lofgren. We are, each of us, blessed to have a
    dedicated staff on the committee that is sorting through some
    suggestions on this right now. I am wondering if we----
        The Chairman. Can you wonder out loud?
        Ms. Lofgren. It was suggested that we accept the word
    ``may'' and add at the end of the amendment ``the use of the
    tabulating machine or scanner shall be solely to verify the
    tally determined by the hand count and not to substitute
    another tally of the ballots''. I don't know. I think that is
    consistent with what you are trying to do. And your staff is
    now nodding yes. This is a sausage-making factory in action,
    folks.
        Mr. Ehlers. But we make fine sausage here.
        Ms. Lofgren. Is that by unanimous consent?
        Mr. Ehlers. What I prefer really is to have the location
    jurisdiction compare the two and decide which one is more
    accurate. But I am not going to--I don't want to require them
    to. The basic idea is, as I said, to really get a comparison of
    the accuracy of hand counting versus a tabulating count. And so
    I guess I will accept your version.
        Ms. Lofgren. So we are asking unanimous consent then to
    substitute the word ``may'' for ``shall'' and this sentence at
    the end of the amendment.
        Mr. Ehlers. I am willing to accept that and--with one
    caveat, that you and I will have further discussions on that
    last thing as it goes through the process.
        Ms. Lofgren. I think that is a fine way to proceed, Mr.
    Chairman; and on that basis we are prepared to accept this
    amendment.
        The Chairman. I would like to recognize Mr. Capuano first.
        Mr. Capuano. Mr. Chairman, I don't know about anybody else,
    but I have actually run elections on all kinds of levels. And I
    will tell you that there are several parts of this bill that I
    don't like, but it is better than the last bill we did, so I
    will vote for it. But I vote for it with all kinds of
    reluctance and all kinds of hope that we can change it further,
    including Ehlers 2. I didn't like that, requiring 8 hours delay
    in a hand count. Fine, I am with it for now, but I am not
    really with it.
        And it is the same thing here. The only elections I have
    seen stolen is when there is nothing but a hand count. That is
    the only elections I have ever seen stolen. A machine count
    with a paper ballot trail to verify it, I am not aware of any
    that can get stolen. A hand count can get stolen, and I will
    tell you how to do it.
        I have no problem trying to work this out later on. But the
    concept here does not bother me. I don't know why it should
    bother anybody who has actually ever been in a place where they
    actually count ballots. I have been there all my adult life,
    and there are ways to verify these things that are very easy.
    The location jurisdictions are more than capable of doing this.
        As long as you provide a question, that is what courts will
    do. Like it or not, we can't do this. These things will end up
    in courts with well-paid attorneys arguing the intent of the
    voter both on the hand count and the machine count.
        So I think that this bill still needs a lot of work. I am
    going to vote for it today because I know that Ms. Lofgren and
    her staff have done great work on I think a very difficult
    bill. And I also like the symbolism of us trying to get to a
    paper trail. This bill only gets us a few steps down the road
    and I think creates other potential problems, but it is much
    better than the bill that we did previously. And I hope that
    before any of these things actually get enacted we have plenty
    of opportunity--I am sure we will--to actually make something
    work.
        Because in the final analysis I think because--I don't know
    why we do this. But this is actually a very simple thing. I
    don't know why we are encouraging people or allowing people,
    more importantly, using taxpayers' money to allow people to go
    out and continue to do things that are stupid. And, on top of
    that, we take communities that have done the right thing on
    their own dime and not give them a nickel, not give them a
    nickel. It is just amazing to me that we keep throwing good
    money after bad without having certain requirements of what
    kind of machines they can use and what we say we want.
        And the only thing I want, the only thing I want is a paper
    trail. All the rest is window dressing. And I want a paper
    trail because there will be arguments, there will be debates,
    there will be discussions, there will be court cases, there
    will be recounts on hand, there will be recounts on machine,
    and it will be a mess on individual cases. But at least there
    will be a paper trail and the voters' decisions will at least
    have a better opportunity to be found at some point.
        So I think that--and this amendment is a classic example. I
    don't know what the concern is, but this is not the place to
    really get into the meat of it.
        At the same time, I think we need to get to the point where
    we understand the local officials are perfectly capable of
    making these decisions. People have been running these
    elections for a long time. They know how to do it. We don't
    have to hold their hand at every step along the way.
        Again, either amendment here is fine by me, as long as--and
    I just want to be clear. I just want it at on the record that I
    have real serious concerns about what we are about to do. I am
    for it, but hesitatingly.
        Mr. Ehlers. Will the gentleman yield?
        Mr. Capuano. Certainly.
        The Chairman. I would first like to thank the gentleman. I
    understand your remarks and I take them quite validly, except
    for the part where you may have incriminated yourself.
        Mr. Capuano. I didn't say I did it. I said I knew how to do
    it.
        Ms. Lofgren. How did you learn?
        The Chairman. I recognize Mr. Ehlers.
        Mr. Ehlers. Thank you.
        I wanted to take exception to the comment why do we do such
    stupid things, but my first thought was maybe because we do
    them so well. In any event, I agree with much of what you say.
    I have the same feelings, and I think much in the bill is
    overkill. But I have agreed to work with Mr. Holt and try to
    produce a bill that would be acceptable.
        I am as skeptical as you are of hand counting, because I
    have been in the room, too. And you know it is not only the
    easiest to commit fraud but also the most difficult to do
    accurately. And that is why I wanted to add the--at least allow
    the local officials, if they wish to run it through the
    tabulator, too, it gives them some idea by comparing the two.
    So that was the intent of the amendment. Unfortunately, it came
    out as a command, rather than an option.
        But, at any rate, I think we should just go with the
    compromise we have agreed to and continue that and will work
    with the bill as it goes through.
        The Chairman. Can we have unanimous consent to change the
    wording on Amendment No. 3? Without objection.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] 42897A.090

        And with the wording being changed, we now will vote on
    accepting No. 3. All those in favor, signify by saying
    aye.Unopposed, Amendment No. 3 is now also accepted.
        The question now is agreeing to the Lofgren amendment in
    the nature of a substitute as amended. Those in favor signify,
    by saying aye. Those opposed? No.
        The ayes have it.
        Ms. Lofgren. Mr. Chairman, I move that the committee report
    the bill, H.R. 5036, as amended, favorably to the House.
        The Chairman. All those in favor of the motion, signify by
    saying aye. Any opposed? No.
        The ayes have it. The motion is agreed to. Without
    objection, the motion to reconsider is laid upon the table. The
    bill will be amended and reported to the House.
        Mrs. Davis of California. Mr. Chairman, I am not sure if
    this is the right place--go ahead. I just wanted to--I had
    meant to ask for unanimous consent to insert letters into the
    previous bill.
        The Chairman. Without objection, that is agreed to.
        Mr. Ehlers.
        The Chairman. Mr. Ehlers.
        Mr. Ehlers. Thank you, Mr. Chairman.
        I have one similar request, that the National Conference of
    State legislatures and Secretary of State Carnahan of Missouri
    have written me a letter expressing concerns about it; and I
    ask unanimous consent that it be placed in the record of
    today's meeting.
        The Chairman. Without objection.
        [The information follows:]
        [The letter from Secretary Carnahan follows. The letter
    from the National Conference of State Legislatures appears
    earlier in the transcript on page 49:]
    [GRAPHIC] [TIFF OMITTED] 42897A.102

    [GRAPHIC] [TIFF OMITTED] 42897A.103

        Mr. Ehlers. I also move that minority views--that we have
    the usual 5 days or whatever period is correct to express
    minority views in the final report.
        The Chairman. I am being told we can have 2 additional days
    to file views.
        Mr. Ehlers. Yeah, 5 days. And then I also wanted to add a
    comment.
        The Chairman.Mr. Ehlers, I think it is 2 days.
        Mr. Ehlers. Two days. I am sorry.
        Then I wanted to also add a comment into the record. I had
    originally planned to offer a motion to sunset this bill at the
    end of the 2008 elections because it is intended to be a trial
    type of bill. However, the legislative branch--I am sorry--the
    legislative service informed us it is not necessary because the
    bill basically sunsets itself because it designates this only
    applies to the 2008 election. I wanted to get that on the
    record so that all election officials across the country
    realize this is just a one-shot thing.
        The final thing, I also raise a question--we had discussed
    this, but for employees whose primary duty station is
    Washington, D.C., expenses are not reimbursable during the
    district work period. We had discussed that on the taxi issue.
    And do you need unanimous consent to add that?
        The Chairman. I think we have disposed of that, but I think
    that is already in.
        Mr. Ehlers. If you disposed of it, that's fine.
        The Chairman. But that is agreed to anyway, and we will
    make sure that that happens.
        Mr. Ehlers. Okay. That takes care of all my final business
    here. Thank you.
        The Chairman. Without objection, the staff will be
    authorized to make the technical and conforming changes to
    prepare H.R. 5036 for filing.
        Now I imagine this hearing is now adjourned.
        [Whereupon, at 1:55 p.m., the committee was adjourned.]