[Congressional Record Volume 150, Number 139 (Wednesday, December 8, 2004)]
[Senate]
[Pages S12042-S12043]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            ELECTION REFORM

  Mr. DODD. Mr. President, yesterday the Leadership Conference on Civil 
Rights, along with Common Cause and the Century Foundation, sponsored 
the first comprehensive public review of election day issues, including 
a review of the implementation of certain provisions of the Help 
America Vote Act, HAVA, bipartisan legislation I was pleased to 
coauthor in the 107th Congress. Numerous other organizations are also 
planning similar reviews, including the distinguished ranking member of 
the House Judiciary Committee, Congressman John Conyers, who is hosting 
a forum on election day issues today on the House side. As the primary 
Senate author of HAVA, I welcome these reviews and believe that 
Congress can learn much from them in terms of whether HAVA is working 
as intended.
  Following the debacle of the 2000 Presidential election, I sought the 
input and counsel of the Leadership Conference and countless other 
civil rights, disability, language minority, and voting rights groups 
to fashion legislation which would ensure that every eligible American 
voter would have an equal opportunity to cast a vote and have that vote 
counted. Our efforts, and the efforts of others, produced the Help 
America Vote Act. HAVA has been hailed as the first civil rights law of 
the 21st century, and I am committed to ensuring that it is fully 
implemented as such.
  The results of the 2004 Presidential election have not been contested 
in the same manner as those of the 2000 election. However, the jury is 
still out on whether HAVA successfully addressed the problems that 
arose in the 2000 election. While I believe there is still much work to 
do to ensure the franchise for all Americans, I am confident that 
without HAVA, thousands of eligible American voters would not have been 
able to cast a vote, nor have their vote counted, in the November 2004 
Presidential election.
  It is important to remember that HAVA is not yet fully implemented. 
In some respects, the most important reforms have yet to be implemented 
by the States. These reforms include mandatory uniform and 
nondiscriminatory requirements that all voting systems provide second-
chance voting for voters, be fully accessible to the disabled, provide 
for a permanent paper record for manual audits, and establish standards 
for what constitutes a vote and how such a vote will be counted for 
each type of voting system used by a State.
  Additional reforms, which must be implemented by 2006, include the 
establishment of a computerized statewide voter registration list which 
must contain the name and registration information for every eligible 
voter in a State. Most importantly, the statewide database must be 
available electronically to every State and local election official, 
ensuring access to voter information at the polling place on election 
day. Had these additional reforms been in place this November, many of 
the election day problems that arose across the country could have been 
avoided or resolved at the polling place.
  But what we do know is that HAVA's requirement that all States shall 
provide a provisional ballot to voters who are challenged at the polls, 
for any reason, ensured the franchise for thousands of Americans on 
November 2 this year. Although many States had forms of provisional 
ballots, HAVA requires that any voter who is willing to affirm that he 
or she is registered in the jurisdiction where they want to vote, and 
are eligible to vote in that election, must be allowed to cast a 
provisional ballot for the Federal offices in that jurisdiction. In 
Ohio alone, 155,000 voters cast provisional ballots, of which an 
estimated 77 percent were counted. That represents over 119,000 
thousand American voters who otherwise might not have been able to cast 
a vote or have their vote counted, but for HAVA.
  Some States, including Ohio, attempted to restrict the right to a 
provisional ballot, but were ultimately unsuccessful. The Federal Court 
of Appeals for the 6th Circuit of the United States affirmed the 
absolute right to receive a provisional ballot, without any additional 
requirements, in the decision of Sandusky vs. Blackwell decided on 
October 26, just one week prior to the election. That decision upheld 
the right of an individual voter to seek judicial redress of the rights 
conferred by HAVA and confirmed the absolute right of a challenged 
voter to receive a provisional ballot. I was pleased to file an amici 
curiae brief, along with my distinguished colleague, Congressman Steny 
Hoyer, in this case in which we urged the court to affirm and enforce 
these rights.
  As with any comprehensive civil rights legislation, HAVA's reach and 
effectiveness will have to be hammered out by the courts. As that 
process plays out, coupled with the States' implementation of the 
remaining HAVA reforms, we will be in a better position to assess 
whether this landmark legislation hit the mark or needs further reform.
  In order to assist Congress in assessing the effectiveness of HAVA, 
specifically with regard to the implementation of the provisional 
ballot requirement, I have requested that the GAO conduct and compile a 
nationwide review of state implementation of this provision. In 
particular, I have asked the GAO to compile data on the number of 
provisional ballots cast in the 2004 election, the number of 
provisional ballots counted, the number not counted and the reasons 
such provisional ballots were not counted. While it is already clear 
that the States are implementing this provision in significantly 
differing manners, it is troublesome that whether a Federal ballot is 
counted or not depends upon State law.
  Efforts such as the conference and forum this week, and others to 
occur in the coming weeks, are vital to understanding the full impact 
of HAVA and its limitations. Although some weaknesses in HAVA are 
already apparent, and it would be my intent to introduce legislation 
early in the 109th Congress to address these weaknesses to better 
ensure HAVA's effectiveness, it is through conferences and forums such 
as these that Congress can assess what further reforms are needed.
  At some point, we must ask ourselves whether we can ever truly ensure 
an equal opportunity to cast a vote and have our votes counted for all 
Americans when our elections are administered by 55 different State and 
territorial governments through over 10,000 local jurisdictions in a 
decentralized manner. Even in light of HAVA's farreaching reforms, this 
Nation is almost unique in its administration of Federal elections at 
the local level. Even under HAVA, States and localities have broad, but 
not absolute, discretion in how they implement HAVA. Similarly, the 
voting system standards which the Federal Election Assistance 
Commission will issue, pursuant to HAVA, remain voluntary only.
  This discretion played out quite differently across this Nation with 
respect to whether provisional ballots, once cast, were actually 
counted. It is time to consider whether, for Federal elections, there 
is a national responsibility to ensure that no matter where and how a 
ballot is cast for the Office of the President of the United States, 
all Americans will have confidence that their vote was cast and counted 
in a uniform and nondiscriminatory way.
  The Help America Vote Act is historic landmark legislation that 
comprehensively defines, for the first time

[[Page S12043]]

in this Nation's history, the role of the Federal Government in the 
conduct of Federal elections. It was an important first step. I look 
forward to working with my colleagues and the civil rights, disability, 
language minority, and voting rights communities, as well as State and 
local election officials, to continue our work to ensure that all 
Americans have access to the most fundamental right in a representative 
democracy: the right to cast a vote and have that vote counted.

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