[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:
http://www.gpoaccess.gov/congress/house/administration/index.html
U.S. GOVERNMENT PRINTING OFFICE
42-897 PDF WASHINGTON : 2008
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Washington, DC 20402-0001
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
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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:]
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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:]
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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:]
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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:]
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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:]
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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:]
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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:]
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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:]
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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:]
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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:]
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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:]
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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:]
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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:]
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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:]
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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.]