[House Report 108-404]
[From the U.S. Government Publishing Office]



108th Congress                                            Rept. 108-404
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

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

 
                CONTINUITY IN REPRESENTATION ACT OF 2003
                                _______
                                

                December 8, 2003.--Ordered to be printed

                                _______
                                

  Mr. Ney, from the Committee on House Administration, submitted the 
                               following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 2844]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on House Administration, to whom was referred 
the bill (H.R. 2844) to require States to hold special 
elections to fill vacancies in the House of Representatives not 
later than 21 days after the vacancy is announced by the 
Speaker of the House of Representatives in extraordinary 
circumstances, and for other purposes, having considered the 
same, report favorably thereon with amendments and recommend 
that the bill as amended do pass.
  The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Continuity in Representation Act of 
2003''.

SEC. 2. REQUIRING SPECIAL ELECTIONS TO BE HELD TO FILL VACANCIES IN 
                    HOUSE IN EXTRAORDINARY CIRCUMSTANCES.

  Section 26 of the Revised Statutes of the United States (2 U.S.C. 8) 
is amended--
          (1) by striking ``The time'' and inserting ``(a) In 
        General.--Except as provided in subsection (b), the time''; and
          (2) by adding at the end the following new subsection:
  ``(b) Special Rules in Extraordinary Circumstances.--
          ``(1) In general.--In extraordinary circumstances, the 
        executive authority of any State in which a vacancy exists in 
        its representation in the House of Representatives shall issue 
        a writ of election to fill such vacancy by special election.
          ``(2) Timing of special election.--A special election held 
        under this subsection to fill a vacancy shall take place not 
        later than 45 days after the Speaker of the House of 
        Representatives announces that the vacancy exists, unless a 
        regularly scheduled general election for the office involved is 
        to be held at any time during the 75-day period which begins on 
        the date of the announcement of the vacancy.
          ``(3) Nominations by parties.--If a special election is to be 
        held under this subsection, not later than 10 days after the 
        Speaker announces that the vacancy exists, the political 
        parties of the State that are authorized to nominate candidates 
        by State law may each nominate one candidate to run in the 
        election.
          ``(4) Extraordinary circumstances.--
                  ``(A) In general.--In this subsection, `extraordinary 
                circumstances' occur when the Speaker of the House of 
                Representatives announces that vacancies in the 
                representation from the States in the House exceed 100.
                  ``(B) Judicial review.--If any action is brought for 
                declaratory or injunctive relief to challenge an 
                announcement made under subparagraph (A), the following 
                rules shall apply:
                          ``(i) Not later than 2 days after the 
                        announcement, the action shall be filed in the 
                        United States District Court having 
                        jurisdiction in the district of the Member of 
                        the House of Representatives whose seat has 
                        been announced to be vacant and shall be heard 
                        by a 3-judge court convened pursuant to section 
                        2284 of title 28, United States Code.
                          ``(ii) A copy of the complaint shall be 
                        delivered promptly to the Clerk of the House of 
                        Representatives.
                          ``(iii) A final decision in the action shall 
                        be made within 3 days of the filing of such 
                        action and shall not be reviewable.
                          ``(iv) The executive authority of the State 
                        that contains the district of the Member of the 
                        House of Representatives whose seat has been 
                        announced to be vacant shall have the right to 
                        intervene either in support of or opposition to 
                        the position of a party to the case regarding 
                        the announcement of such vacancy.''.

    Amend the title so as to read:

      A bill to require States to hold special elections to fill 
vacancies in the House of Representatives not later than 45 days after 
the vacancy is announced by the Speaker of the House of Representatives 
in extraordinary circumstances, and for other purposes.

                       Purpose of the Legislation

    H.R. 2844, the Continuity in Representation Act of 2003, 
establishes a framework for conducting expedited special 
elections to fill House vacancies resulting from a catastrophic 
terrorist attack or other extraordinary circumstances. The 
purpose of H.R. 2844 is to ensure that a functioning House of 
Representatives would be in place with the ability to operate 
with legitimacy in the wake of a potential catastrophic 
terrorist attack.
    Ever since the terrible and fateful morning of September 
11, 2001, the American people have become painfully aware of 
the destructive intent of our country's terrorist enemies as 
well as the increasingly sophisticated and devastating methods 
by which they carry out their deadly work. The possibility that 
terrorists could detonate a nuclear, chemical, or biological 
weapon of mass destruction in our Nation's capital--
annihilating major portions of our federal government and 
potentially killing dozens or hundreds of Members of Congress--
is one that we cannot ignore and is the reason why the 
Committee seeks to move the process forward by reporting this 
important legislation.
    In favorably reporting H.R. 2844, the Committee takes no 
position on any proposed constitutional amendments that would 
provide for the appointment of temporary replacements to fill 
vacant House seats because amendments to the Constitution are 
outside the Committee's jurisdiction.

                       Summary of the Legislation

    H.R. 2844, as amended, provides for expedited special 
elections to be held in ``extraordinary circumstances.'' 
Specifically, this legislation requires that within 45 days of 
the Speaker of the House of Representatives announcing that 
more than 100 vacancies exist in the membership of the House, 
the executive authority of a State in which a House vacancy 
exists shall hold a special election to fill such vacancy.
    The original version of H.R. 2844 contained a 21-day 
timeframe for holding a special election after the announcement 
of extraordinary circumstances. Increasing this time period to 
45 days was deemed necessary to accommodate the concerns of 
many election officials who felt that 21 days was too short and 
may not have allowed for adequate preparation. The majority 
opinion of election officials appears to be that 45 days would 
provide sufficient time to plan and prepare for an expedited 
special election.
    Under H.R. 2844, as amended, each political party 
authorized by state law to nominate candidates would have up to 
10 days following the Speaker's announcement to nominate a 
candidate to run in the special election. The time period for 
party nominations in the original version of H.R. 2844 was 14 
days. The shortened party nomination period would provide 
additional time on the backend for election officials to print 
ballots, test election systems, recruit and train poll workers, 
etc., while still permitting party officials adequate time to 
make candidate nominations.
    H.R. 2844, as amended, also provides that if a state is 
scheduled to hold a general election within 75 days of the 
Speaker's announcement of more than 100 vacancies, that state 
would not be required to schedule an expedited special 
election, thus in essence, affording a 30-day extension to such 
states. The original version of H.R. 2844 provided a similar 
30-day extension--from 21 to 51 days--for states whose election 
machinery was already in motion.
    Any legal action challenging the announcement of more than 
100 vacancies made by the Speaker would have to be filed within 
two (2) days of the announcement in the United State District 
Court having jurisdiction over the congressional district whose 
seat has been declared to be vacant. Such a challenge would be 
heard by a three-judge panel convened pursuant to 28 U.S.C. 
Sec. 2284, and a copy of the complaint would need to be 
delivered to the Clerk of the House of Representatives. The 
executive authority of the relevant state would have the right 
to intervene either in support of or opposition to the 
challenge. A final decision by the panel would be required to 
be issued within three (3) days of the filing and would not be 
reviewable.
    H.R. 2844, as amended, deletes a provision in the original 
version of the bill that stated that the Speaker's announcement 
could not be appealed. After discussing this matter with the 
House Parliamentarian, it was determined that this provision 
was unnecessary since it would be duplicative of current House 
rules. So to avoid any needless confusion, the provision was 
taken out by the amendment.

               Committee Consideration of the Legislation


                       INTRODUCTION AND REFERRAL

    On July 24, 2003, Mr. Sensenbrenner, Mr. Dreier, Mrs. 
Miller, Mr. Cole, Mr. Chabot, and Mr. Paul introduced H.R. 
2844,\1\ which was referred to the Committee on House 
Administration.
---------------------------------------------------------------------------
    \1\ Mr. Conyers signed on as a co-sponsor on September 10, 2003. 
Mr. Bartlett did the same on October 7, 2003.
---------------------------------------------------------------------------

                                HEARINGS

    The Committee on House Administration held one hearing on 
the issue of the continuity of the House of Representatives in 
the event of a catastrophic terrorist attack or other 
extraordinary circumstances.
    On September 24, 2003, the Committee held its hearing on 
this matter.
    Members present: Mr. Ney, Mr. Ehlers, Mr. Linder, Mr. 
Larson, Mr. Brady.
    Witnesses: The Honorable James Sensenbrenner, Chairman, 
Committee on the Judiciary; The Honorable David Dreier, 
Chairman, Committee on Rules; The HonorableMartin Frost, 
Ranking Democratic Member, Committee on Rules; The Honorable Brian 
Baird, Member of Congress; the Honorable Candice Miller, Member of 
Congress; The Honorable Mary Kiffmeyer, the Minnesota Secretary of 
State; R. Doug Lewis, Executive Director, Election Center; Donald R. 
Wolfensberger, Director, Congress Project, Woodrow Wilson International 
Center for Scholars; Thomas E. Mann, W. Averell Harriman Chair and 
Senior Fellow in Governance Studies, Brookings Institution; Norman 
Ornstein, Resident Scholar, American Enterprise Institute.

                                 Markup

    On Wednesday, November 19, 2003, the Committee met to mark 
up H.R. 2844. The Committee favorably reported H.R. 2844, as 
amended, by a record vote (4-3), a quorum being present.

             Matters Required Under the Rules of the House


                         COMMITTEE RECORD VOTES

    Clause 3(b) of House rule XIII requires the results of each 
record vote on an amendment or motion to report, together with 
the names of those voting for and against, to be printed in the 
committee report.

Amendment in the nature of a substitute

    Offered by Mr. Ney. The first vote during the markup came 
on the amendment in the nature of a substitute offered by Mr. 
Ney.
    The amendment altered the original version's timeframes for 
conducting expedited special elections and deleted an 
extraneous provision.
    The vote on the amendment was 4-3 and the amendment was 
agreed to.

------------------------------------------------------------------------
            Member                   Yes           No          Present
------------------------------------------------------------------------
Mr. Ney.......................            X   ............  ............
Mr. Ehlers....................            X   ............  ............
Mr. Mica......................            X   ............  ............
Mr. Linder....................            X   ............  ............
Mr. Larson....................  ............            X   ............
Ms. Millender-McDonald........  ............            X   ............
Mr. Brady.....................  ............            X   ............
                               -----------------------------------------
      Total...................            4             3   ............
------------------------------------------------------------------------

    The Committee then voted to report H.R. 2844 favorably, as 
amended. The vote to report favorably was approved by recorded 
vote (4-3).

------------------------------------------------------------------------
            Member                   Yes           No          Present
------------------------------------------------------------------------
Mr. Ney.......................            X   ............  ............
Mr. Ehlers....................            X   ............  ............
Mr. Mica......................            X   ............  ............
Mr. Linder....................            X   ............  ............
Mr. Larson....................  ............            X   ............
Ms. Millender-McDonald........  ............            X   ............
Mr. Brady.....................  ............            X   ............
                               -----------------------------------------
      Total...................            4             3   ............
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) rule XIII of the Rules of 
the House of Representatives, the Committee states that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                General Performance Goals and Objectives

    The Committee states, with respect to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, that 
the goal and objective of H.R. 2844 is to ensure that a 
functioning House of Representatives would be in place with the 
ability to operate with legitimacy in the wake of a 
catastrophic terrorist attack or other extraordinary 
circumstances.

                        Constitutional Authority

    In compliance with clause 3(d)(1) of rule XIII, the 
Committee states that Article 1, Section 4 of the U.S. 
Constitution grants Congress the authority to make laws 
governing the time, place and manner of holding Federal 
elections.

                            Federal Mandates

    The Committee states, with respect to section 423 of the 
Congressional Budget Act of 1974, that the bill does not 
include any significant Federal mandate.

                        Preemption Clarification

    Section 423 of the Congressional Budget Act of 1974 
requires the report of any committee on a bill or joint 
resolution to include a committee statement on the extent to 
which the bill or joint resolution is intended to preempt state 
or local law. The Committee states that H.R. 2844 preempts 
state and local laws regarding the timing ofholding special 
elections to fill vacancies in the House of Representatives in the 
event of extraordinary circumstances, unless such state and local laws 
otherwise are compliant or otherwise consistent with the timeframes for 
holding expedited special elections set forth in H.R. 2844.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, the following estimate and comparison 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, December 1, 2003.
Hon. Robert W. Ney,
Chairman, Committee on House Administration,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2844, the 
Continuity in Representation Act of 2003.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Sarah Puro.
            Sincerely,
                                     Elizabeth M. Robinson,
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

H.R. 2844--Continuity in Representation Act of 2003

    Summary: H.R. 2844 would provide for the continuity of the 
House of Representatives if the Speaker of the House announced 
that there were ``extraordinary circumstances''--effectively 
100 or more vacancies in the House of Representatives. The bill 
would require states to hold special elections to fill 
vacancies in the House of Representatives within 45 days of 
such an announcement. The bill also would provide for judicial 
review of challenges to the announcement of extraordinary 
circumstances. CBO estimates that enacting H.R. 2844 would have 
no significant impact on the federal budget.
    By requiring states to hold elections within 45 days of an 
announcement of ``extraordinary circumstances,'' H.R. 2844 
contains an intergovernmental mandate as defined in the 
Unfunded Mandates Reform Act (UMRA). CBO estimates that the 
costs of that mandate over the next five years would not exceed 
the threshold established in that act ($60 million in 2004, 
adjusted annually for inflation).
    H.R. 2844 contains no new private-sector mandates as 
defined in UMRA.
    Estimated cost to the Federal Government: CBO estimates 
that enacting H.R. 2844 would have no significant impact on the 
federal budget over the next several years. Although the bill 
could affect the timing and amounts spent on Members' salaries 
(which are classified as mandatory) and office expenses (which 
are subject to appropriation), CBO expects that any such impact 
is unlikely to occur and would be minor in any event.
    Intergovernmental mandates contained in the bill: H.R. 2844 
would require States to hold elections within 45 days after an 
announcement by the Speaker of the House that there are 
``extraordinary circumstances''--effectively 100 or more 
vacancies in the House of Representatives--unless a regularly 
scheduled general election would occur within 75 days. This 
intergovernmental mandate would require 40 states to adopt a 
quicker time frame than they currently have for holding general 
elections in the event of a vacancy that does not coincide with 
a regularly scheduled election, and some states would need to 
amend their state constitutions. Further, the bill would likely 
prohibit states from holding primaries--as required by law in 
some states--for two reasons. First, the short time frame for 
the general election would logistically prohibit the holding of 
a primary, and second, political parties would be required to 
furnish a candidate within 10 days of the announcement of 
extraordinary circumstances.
    Estimated direct costs of the mandates to state and local 
governments: Based on information from state and local election 
professionals, CBO estimates that the cost to run a special 
election ranges from $200,000 to $500,000 per district (in 2004 
dollars), depending on the circumstances and location of the 
special election, the total number of special elections being 
held nationwide, and other factors. In the absence of the bill, 
states would hold elections and fill vacancies, but CBO 
estimates that the new requirements and short time frame 
required by the bill would likely generate significant 
additional costs for states. However, the likelihood is small 
that, over the next five years, events would occur triggering 
the provisions in H.R. 2844. Even if such an event were to 
occur, the additional costs for special elections may not 
exceed the threshold established in UMRA ($60 million in 2004, 
adjusted annually for inflation).
    Estimated impact on the private sector: H.R. 2844 contains 
no new private-sector mandates as defined in UMRA.
    Estimate prepared by: Impact on State, Local, and Tribal 
Governments: Sarah Puro; Federal Costs: Deborah Reis; and 
Impact on the Private Sector: Paige Piper/Bach.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget and Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

        SECTION 26 OF THE REVISED STATUTES OF THE UNITED STATES

  Sec. 26. [The time] (a) In General.--Except as provided in 
subsection (b), the time for holding elections in any State, 
District, or Territory for a Representative or Delegate to fill 
a vacancy, whether such vacancy is caused by a failure to elect 
at the time prescribed by law, or by the death, resignation, or 
incapacity of a person elected, may be prescribed by the laws 
of the several States and Territories respectively.
  (b) Special Rules in Extraordinary Circumstances.--
          (1) In general.--In extraordinary circumstances, the 
        executive authority of any State in which a vacancy 
        exists in its representation in the House of 
        Representatives shall issue a writ of election to fill 
        such vacancy by special election.
          (2) Timing of special election.--A special election 
        held under this subsection to fill a vacancy shall take 
        place not later than 45 days after the Speaker of the 
        House of Representatives announces that the vacancy 
        exists, unless a regularly scheduled general election 
        for the office involved is to be held at any time 
        during the 75-day period which begins on the date of 
        the announcement of the vacancy.
          (3) Nominations by parties.--If a special election is 
        to be held under this subsection, not later than 10 
        days after the Speaker announces that the vacancy 
        exists, the political parties of the State that are 
        authorized to nominate candidates by State law may each 
        nominate one candidate to run in the election.
          (4) Extraordinary circumstances.--
                  (A) In general.--In this subsection, 
                ``extraordinary circumstances'' occur when the 
                Speaker of the House of Representatives 
                announces that vacancies in the representation 
                from the States in the House exceed 100.
                  (B) Judicial review.--If any action is 
                brought for declaratory or injunctive relief to 
                challenge an announcement made under 
                subparagraph (A), the following rules shall 
                apply:
                          (i) Not later than 2 days after the 
                        announcement, the action shall be filed 
                        in the United States District Court 
                        having jurisdiction in the district of 
                        the Member of the House of 
                        Representatives whose seat has been 
                        announced to be vacant and shall be 
                        heard by a 3-judge court convened 
                        pursuant to section 2284 of title 28, 
                        United States Code.
                          (ii) A copy of the complaint shall be 
                        delivered promptly to the Clerk of the 
                        House of Representatives.
                          (iii) A final decision in the action 
                        shall be made within 3 days of the 
                        filing of such action and shall not be 
                        reviewable.
                          (iv) The executive authority of the 
                        State that contains the district of the 
                        Member of the House of Representatives 
                        whose seat has been announced to be 
                        vacant shall have the right to 
                        intervene either in support of or 
                        opposition to the position of a party 
                        to the case regarding the announcement 
                        of such vacancy.

                        Committee Correspondence

                          House of Representatives,
                         Committee on House Administration,
                                   Washington DC, December 8, 2003.
    On November 19, 2003, the House Administration Committee 
convened and favorably reported H.R. 2844, the Continuity in 
Representation Act of 2003. Attached, you will find the 
Majority and Minority views for submission into the 
Congressional Record.
                                                 Bob Ney, Chairman.

  MINORITY VIEWS OF JOHN B. LARSON OF CONNECTICUT, JUANITA MILLENDER-
       McDONALD OF CALIFORNIA AND ROBERT A. BRADY OF PENNSYLVANIA

    The House Administration Committee ordered H.R. 2844 
reported on a 4-3 vote with virtually no substantive 
explanation offered by the Majority, either at the markup or in 
the committee report, about what the bill actually does or why 
it is needed. In our view, H.R. 2844 would more likely result 
in additional disruption and confusion, rather than 
improvement, in the way states conduct special elections. The 
bill also does not address other significant issues relating to 
the continuity of Congress, some of which are not within the 
jurisdiction of our committee, which suggests the need for a 
multi-track approach to the entire range of issues and the 
coordination of such an effort by the leadership of Congress.

                              INTRODUCTION

    H.R. 2844 would exercise Congress' powers under Article I, 
Section 4, Clause 1 of the Constitution to alter existing state 
laws which set the ``Times, Places and Manner'' of elections to 
the House of Representatives to change the way special 
elections to fill vacancies are conducted nationwide. The 
bill's provisions would take effect only under ``extraordinary 
circumstances'', which is defined by the legislation as being 
at any time after the Speaker of the House announces that the 
number of vacancies in the body exceeds 100.
    Ostensibly, by shortening the time frame for the conduct of 
such elections to a maximum of 45 days after a vacancy is 
declared, the sponsors claim that the legislation would bring 
the House back to full strength following a catastrophe more 
rapidly than if existing state laws, which vary widely, were 
utilized.
    Unfortunately, H.R. 2844 has serious conceptual and 
substantive flaws. It also ignores many of the major issues 
affecting continuity of the Congress which must be addressed if 
our democratic system is to continue to function in the 
aftermath of a future crisis. Indeed, there is concern that 
moving this bill at this time is intended to preempt 
consideration of other proposals which deserve a significant 
debate in Congress, such as constitutional amendments. Members 
may not agree with some or all of these proposals, and they are 
far more difficult to craft than the slipshod process which 
produced H.R. 2844, but they are worthy of continued 
discussion.

                            PRINCIPAL FLAWS

    The provisions of H.R. 2844 are excessively vague, even as 
it preempts laws in all 50 states which may conflict with its 
stated purpose. The Committee has not established a record or 
collected data on what these state laws might be, or of what 
the effects of preemption might be. The bill could also 
interfere with the operation of existing Federal laws which 
guarantee absentee voting rights, and conflict with previous 
court decisions and consent decrees on these subjects. None of 
these problems have been examined by the House Administration 
Committee.
    For example, if the bill is enacted, it is unclear if 
states can still use their existing laws to conduct special 
elections. According to the committee report, they may not ``* 
* * unless such state and local laws otherwise are compliant or 
otherwise consistent with the timeframes for holding expedited 
special elections set forth in H.R. 2844''. This is a 
formulation tailor-made for confusion and litigation at a time 
of national crisis. States may be required to change laws which 
conflict with the bill's objectives. Would the states do this? 
The bill provides no incentives for such state action until 
after a crisis has begun, when it might be too late to bring 
the states' election structures into timely compliance.
    If the states do change conflicting laws, it is unclear 
whether the bill's provisions can secure the nomination and 
election of candidates within the specified 45-day timeframe. 
Enactment of this bill might leave states with no way to fill 
House vacancies at a time when the nation faces potentially 
dire conditions disrupting the functions of government.
    The bill also would not provide any remedy for 
circumstances involving congressional disability, which could 
leave the House, under certain adverse conditions, without a 
quorum for 45 days or more. Without a functioning House, the 
entire legislative process in Congress would be paralyzed. The 
House could, theoretically, function with a small ``rump'' of 
Members as long as a majority quorum of those who might be 
``chosen, living and sworn'' at any particular point in time 
could assemble, but such a situation would be undesirable 
because the new entity would likely be unrepresentative--
geographically, politically and ideologically--compared to a 
fully-constituted House.
    Any circumstances involving the Senate in the aftermath of 
a catastrophe are not addressed by this bill. The Senate does 
not have the problem the House does in reconstituting itself 
because the 17th Amendment to the Constitution allows state 
legislatures to empower governors to make temporary 
appointments ``* * * until the people fill the vacancies as the 
legislature may direct'', and nearly all states allow the 
governor such authority.
    However, like the House, the Senate lacks any mechanism to 
deal with the replacement of its disabled members, and the 
disability of a substantial number of representatives and 
senators under certain conditions could threaten the existence 
of a quorum in one or both chambers. The issue of disability in 
the House and Senate probably requires a constitutional 
amendment to address, an issue of major controversy in the 
conflux of ``continuity'' issues, but one not within the 
jurisdiction of the House Administration Committee.
    In sum, H.R. 2844 sets impractical deadlines, ignores the 
constitutional rights of candidates to run for election and of 
voters to participate in elections, and would likely create 
confusion in the aftermath of a national catastrophe when the 
country needs the stability of established constitutional 
processes and the legitimacy of the rule of law.
    The bill essentially creates a procedure that may be little 
more than a shell, calls it a ``special election'', and leaves 
states to address the confusion it creates in its wake.

                         CONTINUITY OF CONGRESS

    The bill's narrow focus ignores broader questions of 
congressional continuity, such as whether it might be possible 
to make the House operational again in a period of days--rather 
than months--to respond to the requirements for emergency 
legislation, congressional oversight and consultation with the 
executive branch in the immediate aftermath of a catastrophe.
    The American people must be able to count on a functioning 
Congress in the wake of a catastrophic event. Two days after 9/
11, Congress passed legislation expediting benefits for public 
safety officers killed or injured in the line of duty. Three 
days after 9/11, Congress appropriated $40 billion in emergency 
funds and approved legislation supporting the use of military 
force. A week later, Congress enacted important legislation 
affecting our economy and securing the air transport system, 
and compensating the victims of the 9/11 attacks. Had events 
unfolded differently, none of this legislation might have been 
enacted in a timelyfashion. Or the President might have usurped 
constitutional powers of Congress, hoping for subsequent ratification 
of his actions.
    As noted, the bill does not address the problem of disabled 
Members of Congress. And while it appears to set specific 
timetables for the conduct of special elections, the bill 
actually would require states to hold elections within 45 days 
irrespective of the practical mechanics of conducting them. It 
would also ignore requirements, derived from Federal and state 
law and upheld in court decisions, to allow candidates to 
qualify for the ballot, and to allow voters to be able to 
participate in the election.

                            RUSH TO JUDGMENT

    The normal process a committee follows in considering 
whether to report a bill to the House is to hear testimony from 
witnesses, study the bill, draft appropriate amendments or a 
new bill, and debate the substance of the legislation at a 
committee markup.
    Regrettably, only the first step was followed in the case 
of H.R. 2844. The committee held a hearing on September 24, 
2003, which thoroughly analyzed issues of congressional 
continuity, including the possible consideration of 
constitutional amendments, which are not within the 
jurisdiction of our committee. The hearing revealed the 
complications which might result from altering election 
procedures in each of the states without first obtaining a 
thorough working knowledge of how they operated in practice.
    Even as they were voting to favorably report the bill from 
the Committee on House Administration on November 19, 2003, it 
was apparent from the debate that the Majority members didn't 
understand how special elections conducted pursuant to H.R. 
2844 would work. That alone is more than sufficient reason for 
the House to reject this bill as premature, but there are 
plenty of additional reasons which we will discuss further.
    Why, then, did the Committee proceed to report it 
favorably? We believe there are two reasons:
          First, pressure from the Republican leadership and 
        senior committee chairs intent on dampening momentum 
        for other types of proposals which attempt to grapple 
        more comprehensively with the problem of how to 
        reconstitute the House of Representatives following a 
        catastrophe, such as a constitutional amendment which 
        might permit temporary appointments to be made to 
        replenish the House; and
          Second, a reluctance to face the prospect of mass 
        Congressional casualties. The reason the issue of 
        congressional continuity has not yet reached critical 
        mass is that Members are reluctant to confront the 
        prospect of their own mortality, and to deal with the 
        unpleasant mechanics and technical details of their own 
        demise or potential incapacity. Unfortunately, our 
        adversaries are constantly thinking about just such 
        things, as we saw on September 11. We must demonstrate 
        similar intensity.
    Confronted with questions about our own mortality, denial 
is a natural reaction. Unfortunately, for legislators elected 
to find solutions to problems, it is not an acceptable one.
    Even the nonpartisan Congressional Budget Office has taken 
a ``head in the sand'' approach to the economic analysis of 
this bill, noting in its cost estimate accompanying this report 
that ``* * * the likelihood is small that, over the next five 
years, events would occur triggering the provisions of H.R. 
2844.'' After the events of September 11, 2001, no one can make 
such an assumption.
    We want to stress that our concerns with this bill are not 
partisan. It is simply a poorly written piece of legislation. 
Congressional continuity is not a partisan issue. No party 
gains an advantage when hundreds of Members may be dead, 
incapacitated, or confined to hospitals or burn wards.
    There are Members of differing views on all sides of all 
aspects of these issues. If constitutional amendments and other 
relevant legislation were considered on the House floor in a 
carefully structured manner, Members might be treated to an 
extraordinary debate about the organization of our government 
and the role of the House. Unfortunately, this bill's 
supporters are using it as a way to shunt aside the major 
issues, while pretending to take action.
    We do not oppose the idea of Federal legislation expediting 
House special election processes in the states, or encouraging 
the states to do so themselves. On the contrary, we encourage 
constructive action at both levels of government and believe 
that debate in the states, and in individual congressional 
districts, should be encouraged by Members through public 
forums, newsletters and other means. However, rushing through a 
bad bill without consulting with the states will not yield 
constructive results.
    Members who may support constitutional amendments are 
taking widely varying approaches. Representative Larson of 
Connecticut plans to introduce a constitutional amendment which 
would allow state legislatures or, if they fail to act, state 
governors, to appoint temporary members to serve until special 
elections are held. Representative Baird of Washington has 
introduced H.J. Res. 77, which would allow Members to leave 
lists of potential successors with state governors to choose 
temporary replacements. Senator Cornyn of Texas has introduced 
S.J. Res. 23, a constitutional amendment, and S. 1820, 
hypothetical enacting legislation derived from the amendment, 
which would define a number of possible methods for temporarily 
filling House seats, leaving it to individual states to decide.
    Any such proposals, if considered in the House, would fall 
under the jurisdiction of the House Judiciary Committee. The 
Judiciary Subcommittee on the Constitution held a hearing on 
February 28, 2002, but Representative Sensenbrenner, chairman 
of the full Judiciary Committee, informed the House 
Administration Committee during testimony at our hearing that 
there would be no further consideration of such proposals in 
the 108th Congress by his committee.
    It is most unfortunate that the Judiciary Committee 
chairman is shutting off debate on the most serious form of 
legislation--constitutional amendments--in his own committee, 
while promoting a defective alternative in ours. But closing 
and locking the Judiciary Committee door does not excuse action 
in haste by the House Administration Committee.

                         PROVISIONS OF THE BILL

    H.R. 2844, as originally introduced, called for special 
House elections around the nation to be held within 21 days of 
a catastrophe. But this figure was so unrealistically truncated 
that, during the House Administration Committee's hearing, the 
sponsor backed away from it. H.R. 2844, as ordered reported, 
was amended by a substitute presented to the Majority by 
Representative Sensenbrenner, and then adopted as a committee 
amendment, which would require states which had vacancies in 
one or more of their seats in the House of Representatives to 
fill the seats within 45 days, under specified criteria, if at 
any time the number of House vacancies nationwide exceeded 100.
    While 45 days is at least an improvement over the 21 days 
originally proposed in H.R. 2844 as introduced, the substitute 
was apparently crafted based on one line in the testimony at 
our hearing of Mr. Doug Lewis, executive director of the 
Election Center, in which he summarized the views of state 
elections administrators polled by his organization:

          While the responses indicated a variety of dates 
        ranging from the shortest time * * * of 35 days (after 
        determination of who the candidates will be) to a 
        period of four months, it appears that elections 
        administrators feel they can conduct an election with 
        as few as 45 days. However, the election officials 
        would be far more confident that the interests of 
        democracy would be best served by having up to 60 days 
        to get the elections organized and held. Each 
        additional day beyond the 45-day minimum time frame 
        creates greater confidence in the process. (Page 3 of 
        testimony of R. Doug Lewis, Executive Director of the 
        Election Center, before the Committee on House 
        Administration).

    Mr. Lewis has not endorsed H.R. 2844.
    The bill would also allow political parties in the states 
which are ``authorized to nominate candidates'' to select 
candidates within a 10-day period from the time a vacancy has 
been declared. It would effectively ban party primaries due to 
the short timeframe. The bill makes no provision for what 
happens if the parties do not select candidates in this manner, 
or do so after the 10-day period has elapsed. Perhaps the 
states are expected to fill in the blanks, because the bill 
does not. The bill also makes no reference to minor parties and 
independent candidates, who must be allowed a means to attempt 
to qualify for the ballot under existing laws.

                           SPECIAL ELECTIONS

    According to the Continuity of Government Commission of the 
Brookings Institution and the American Enterprise Institute, 
the average time to fill vacant House seats was 126 days 
between the 99th and 107th Congresses.\1\ Some states do not 
hold special elections at all if, for example, vacancies occur 
at a certain threshold prior to the regular general election in 
even-numbered years. Others manage to conduct such elections 
with extraordinary speed--even more rapidly than envisioned by 
H.R. 2844--but we must be mindful of the fact that while such 
elections have passed muster and been accepted as legitimate by 
voters in those states, in others they would be regarded as an 
attempt to reduce voter and candidate participation in the 
process and be considered undemocratic. And they may improperly 
result in the exclusion or diminution of participation by 
absentee voters and Americans stationed or living abroad.
---------------------------------------------------------------------------
    \1\ Preserving Our Institutions: The First Report of the Continuity 
of Government Commission, May, 2003, p. 7.
---------------------------------------------------------------------------
    Congress should not rush to disregard the established 
political values of the states without a far more careful 
examination than was accorded to H.R. 2844.
    In Minnesota, for example, only 29 days elapsed between the 
resignation of Representative Bob Bergland (D) on January 24, 
1977, and the election of his successor, Representative Arlan 
Stangeland (R), on February 22, 1977. The state also managed to 
hold a primary election in between these dates on February 8, 
1977. However, these were unique circumstances. Representative 
Bergland was President-elect Carter's nominee for Secretary of 
Agriculture, so it was known well in advance of the actual 
vacancy that he would be leaving the House of Representatives 
and triggering a special election, giving potential candidates 
and the district's election officials time to prepare; and 
Minnesota allows same-day voter registration, which permits 
voters to respond quickly to the special election process.
    More typical are the circumstances which elected three 
Members of this committee in special elections.
    The seat won by Representative Ehlers of Michigan became 
vacant on July 31, 1993, he won a Republican primary on 
November 2, and a special election on December 7. There were 
129 days between the time of the vacancy and the time of the 
election, and it included a primary election.
    The seat won by Representative Millender-McDonald of 
California became vacant on December 15, 1995; she won an 
unusual primary election on March 26, 1996, which also doubled 
as the final special election since all of the candidates she 
defeated were also Democrats, which negated the state's normal 
requirement to have all of the top finishers from different 
parties compete in a runoff. That vacancy lasted 101 days. But 
had a candidate of another political party entered the special 
election, a runoff would have had to have been held, which 
would have kept the seat vacant for several additional months.
    The seat won by Representative Brady of Pennsylvania became 
vacant on November 11, 1997. He was nominated by a Democratic 
Party committee and then won a special election on May 19, 
1998, timed to coincide with the state's primary for the 
regular two-year term. The total was 189 days, and that was 
without a primary.
    So the special election with apparently the lowest degree 
of complexity--in Pennsylvania--resulted in the longest period 
of vacancy, because the state decided to allow a longer 
campaign and to consolidate the special election with others to 
save time and money. Pennsylvania balanced a variety of 
important interests in choosing the most appropriate method and 
timeframe within the established laws and political culture of 
the state.
    Each of these elections took place in safe one-party 
districts, and all of them took longer than the time-frame 
envisioned by H.R. 2844. They serve as a warning that Congress 
must be especially cautious in concocting a truncated procedure 
for use in states which will have no advance knowledge--by 
definition--of a catastrophic event and impending House 
vacancies, where elections may be closely contested in 
competitive districts, and where the mechanics of election 
administration may be more cumbersome. However, they should 
also serve as a warning for states about the potential 
disadvantage of allowing excessively lengthy election periods. 
The special election structure should be balanced against the 
adverse consequences--loss of congressional representation--
which might occur as a result in a time of crisis. States are 
in the best position to make such determinations.

            CALIFORNIA AND TEXAS SPECIAL ELECTIONS DISRUPTED

    We must also be mindful of eclectic procedures in a number 
of states, including our two largest states, California and 
Texas, which would be dismantled by this legislation. The 
California all-candidate primary leads to a runoff among the 
top vote getters from each party if no candidate initially 
receives a majority. In Texas, all candidates run irrespective 
of party, and the top two vote-getters irrespective of party 
compete in a runoff if no candidate initially receives a 
majority of the vote. Requiring political parties in those 
states to choose individual nominees--without any form of 
primary--would be both a radical change in the election process 
and disregard a political culture which has evolved to reduce 
the power of state and local party organizations.

                MILITARY PERSONNEL AND AMERICANS ABROAD

    H.R. 2844 completely ignores issues affecting military 
personnel and their families and Americans abroad, and 
wouldvirtually ensure that many of them would be excluded from the 
special election process contemplated by the bill.
    The total 45-day time frame in the bill between the 
declaration of a House vacancy and the conduct of a special 
election falls far short of the recommended 45-day time for 
transmission and return of a completed ballot to and from an 
absentee voter recommended to the states by the Federal Voting 
Assistance Program (FVAP), an agency of the Department of 
Defense.
    Under the terms of the bill, candidates of major parties 
would probably not even be known until 35 days prior to the 
date of the election, with additional time of uncertain 
duration required to deal with the issue of non-major party 
candidates and ballot preparation.
    Members of the military and U.S. citizens living abroad are 
eligible to register and vote absentee in Federal elections 
under provisions of the Uniformed Overseas Citizens Absentee 
Voting Act of 1986 (UOCAVA) (P.L. 99-410; 42 U.S.C. sec. 
1973ff, et. seq.). The law was enacted to improve absentee 
registration and voting and to consolidate existing laws.\2\
---------------------------------------------------------------------------
    \2\ See the CRS Report, ``The Uniformed and Overseas Citizens 
Absentee Voting Act: Background and Issues'', by Kevin J. Coleman, 
updated January 30, 2003.
---------------------------------------------------------------------------
    The Overseas Citizens Voting Rights Act of 1975 guaranteed 
absentee registration and voting rights for citizens outside 
the U.S., whether or not they maintained a U.S. residence or 
address. Subsequently, UOCAVA, the National Defense 
Authorization Act of 2002 (P.L. 107-107) and the Help America 
Vote Act of 2002 (HAVA) (P.L. 107-252) added to and refined the 
provisions.
    Under current Federal law, states must:
     Permit absent uniformed services voters, spouses 
and dependents and other overseas voters to vote absentee in 
all elections for Federal office, including general, primary, 
special and runoff elections. Voters may submit a single 
absentee ballot application to receive a ballot for each 
Federal election in a state during a year. HAVA subsequently 
extended the period covered by a single absentee ballot 
application to the next two regular general elections for 
Federal offices, and also prohibited states from refusing to 
accept a valid voter registration application on the grounds 
that it was submitted prior to the first date on which the 
state processes applications for the year.
     States must also accept and process any valid 
voter registration application from an absent uniformed 
services or overseas voter if the application is received not 
less than 30 days before the election.
     The law recommends that states accept the Federal 
Write-in Absentee Ballot for general elections to Federal 
offices if the voter has not received an absentee ballot in a 
timely manner. It also recommends that states accept the 
Federal Post Card Application to allow for simultaneous 
absentee registration and to request an absentee ballot.
    So the trend in Federal law over the last few decades has 
clearly been to establish additional rights for absentee voters 
abroad, while admonishing states to comply with other useful 
procedures through their own laws and regulations. The Federal 
government has brought successful lawsuits or negotiated 
consent decrees involving states which have been, or which 
might be, unable to comply with legal requirements.
    H.R. 2844 could jeopardize these gains with its 45-day 
deadline for an election to occur, irrespective of other legal 
or practical considerations. It is silent on the issue of 
absentee voting. Its potential impact on and inter-relationship 
with UOCAVA and the other relevant Federal statutes are unclear 
and confusing at best, and contradictory at worst.
    The committee report states:

        * * * H.R. 2844 preempts state and local laws regarding 
        the timing of holding special elections to fill 
        vacancies in the House * * * in the event of 
        extraordinary circumstances, unless such state and 
        local laws otherwise are compliant or otherwise 
        consistent with the timeframes for holding expedited 
        special elections set forth in H.R. 2844.

    Additional information on this topic appears in the 
Exhibits following the main text.

                        DICTATING TO THE STATES

    The Majority evidently intends, if H.R. 2844 passes, to 
claim that it has addressed the issue of ensuring the 
continuity of Congress in the event of catastrophe. It is true 
that the process of filling vacant House seats in some states 
may appear excruciatingly slow, especially if the House is 
denuded of Members due to massive sudden deaths, or is 
threatened with loss of a quorum due to a combination of deaths 
and disability.
    States would be well advised to reexamine their laws, as 
the House urged them to do when it adopted House Resolution 559 
of the 107th Congress on October 10, 2002, barely more than one 
year ago. This resolution, which fell under the jurisdiction of 
our committee, was prompted by the efforts of a special working 
group appointed by the bipartisan House leadership and led by 
Representatives Cox of California and Frost of Texas.
    The House Administration Committee has made no subsequent 
effort to assess the progress states have made in this area 
since passage of the non-binding House resolution. The odds are 
that very little action has occurred, but Congress should at 
least attempt to find out the reasons for states' inaction 
before rushing to impose a Federal statute which may require 
substantial changes in existing state laws and mandate 
additional costs on the states. At the very least, the 
committee should have asked the states for their opinions about 
the bill before considering it and ordering it reported.
    Any Federal statute setting a single House special election 
procedure nationwide--and especially this one, which uses an 
unrealistic timeframe, which could conceivably bar third party 
and independent candidates from getting on the ballot, and 
which threatens the rights of absentee voters, Americans living 
abroad and military personnel and their families to participate 
in the political process--needs to be approached with extreme 
caution.
    The Congressional Budget Office, in its estimate to 
accompany this report, notes that the bill contains an 
``intergovernmental mandate'' pursuant to the Unfunded Mandates 
Reform Act (UMRA), and that ``* * * the new requirements and 
short time frame required by the bill would likely generate 
significant additional costs for states.''
    CBO further notes that ``This intergovernmental mandate 
would require 40 states to adopt a quicker time frame than they 
currently have for holding general elections in the event of a 
vacancy that does not coincide with a regularly scheduled 
election, and some states would need to amend their state 
constitutions. Further, the bill would likely prohibit states 
from holdingprimaries--as required by law in some states--for 
two reasons. First, the short time frame for the general election would 
logistically prohibit the holding of a primary, and second, political 
parties would be required to furnish a candidate within 10 days of the 
announcement of extraordinary circumstances.''
    When Congress is ready to fully engage continuity issues--
and the second session of the 108th Congress would be an 
excellent time to do so--the House Administration Committee 
could carefully craft a bill to provide states with a model 
statute, for example, to use for special elections. The states 
might be given the option of whether to employ a new Federal 
statute or their existing laws, or to revise their existing 
laws. In any case, states have a strong incentive to utilize 
procedures to improve their current practices, and to ensure 
that their House seats are filled as expeditiously as possible 
so that other states would not enjoy the advantage of 
representation in the House while theirs remained vacant.

                          UNANSWERED QUESTIONS

    At the markup, Ranking Member Larson raised questions on a 
number of significant issues relating to H.R. 2844, which he 
read into the record. In response, Chairman Ney said ``* * * 
there are questions that have to be answered and need to be 
answered, and we will need to talk to the bill's primary 
sponsor to get answers to these questions.''
    Prior to the filing of this report, no response had been 
received from the bill's chief sponsor, Representative 
Sensenbrenner. We restate and clarify these questions below, 
and include additional discussion for the information of 
Members.
    Among possible problems with the legislation which were not 
addressed at the committee markup:

How is the Bill's ``Trigger'' Activated?

    The method for determining the number of vacancies required 
to activate the ``extraordinary circumstances'' trigger 
providing for the special election rules is not clear. H.R. 
2844 assumes that the Speaker will make an announcement when 
more than 100 vacancies exist in the House, but the bill does 
not reference relevant House rules governing the Speaker's 
announcements of vacancies, or possible actions of a Speaker 
pro tempore, a temporary presiding officer of lesser status who 
performs a variety of limited functions under House rules in 
the absence of a Speaker.
    The bill also does not address what might happen if the 
Speakership is vacant at the time of ``extraordinary 
circumstances'', and if a quorum is demonstrated not to be 
present in the House to elect a new Speaker or Speaker pro 
tempore.
    A Speaker pro tempore selected from a list created by the 
departed Speaker to serve until the election of a Speaker or a 
Speaker pro tempore under clause 8(b)(3)(A) of House Rule I may 
only exercise such ``authorities of the Office of Speaker as 
may be necessary and appropriate to that end'' (the election of 
a new presiding officer), which may conflict with any potential 
grant of new authority which might be contemplated by the bill. 
This rule was adopted in the 108th Congress as one of the 
recommendations of the Cox-Frost Working Group in 2002, and has 
never been implemented, though the Speaker has submitted the 
requisite list of names of potential Speakers pro tempore to 
the Clerk.
    Would a Speaker pro tempore selected pursuant to clause 
8(b)(3)(A) have authority to make a specific announcement 
activating the provisions of H.R. 2844?
    Would an announcement triggering special election processes 
in the states be considered ``necessary and appropriate'' to 
the election of a new Speaker if the position was vacant at the 
time?
    A Speaker or Speaker pro tempore may announce adjustments 
to the whole number of the House, pursuant to clause 5(c) of 
Rule XX, in the event of the death, resignation, expulsion, 
disqualification or removal of Members, but he does not 
announce any specific number of vacancies, announce any 
threshold or trigger number, or take any action to specifically 
activate the provisions of a statute. The House notifies the 
executive authority of a state when a vacancy occurs in the 
membership from that state.
    The bill does not specify how state executive authorities 
collectively would take notice when the total number of 
vacancies exceeds 100.

How many House vacancies should be needed?

    The number of vacancies chosen to activate the trigger--
exceeding 100--is arbitrary and should have been examined in 
greater detail by the committee. With 334 Members ``chosen, 
living and sworn'' at the time the provisions of H.R. 2844 
would go into effect, the House would have ample Members to 
operate, and a quorum of 218 would not be threatened, unless a 
substantial number of the survivors were also disabled.
    The House passes bills or motions with more than 100 
Members absent under normal circumstances; for example, it did 
so four times on November 17, 2003, shortly before our 
committee markup, and is not uncommon as Congress is attempting 
to adjourn a session, or to go out for a lengthy recess.

How is the issue of Disability of Members addressed?

    The bill does not address questions of disability, which 
can threaten a quorum under certain conditions in the aftermath 
of a catastrophe and paralyze the entire Congress.
    The Constitution does not grant the Speaker, or the House 
itself, or a state, authority to declare a sitting Member 
disabled or to remove a sitting Member as a consequence of 
disability. A constitutional amendment is very likely the only 
method to create a new procedure to deal with instances in 
which Members are alive but non-functional. Members can always 
be expelled for any reason, assuming the House has a quorum to 
do so. But what happens if the House lacks a quorum, or if the 
prospect still exists that disabled Members might eventually 
return to their duties?
    In the 1981 case of Representative-elect Gladys Noon 
Spellman (D-MD), the House declared her seat vacant by simple 
majority vote after determining that she would not be able to 
appear to take the oath of office, one of the Constitution's 
requirements to become a Member. She was not a sitting Member 
of the House, so a two-thirds vote on expulsion was not 
required.
    During our earlier hearing, Representative Sensenbrenner 
made various unsupported statements regarding incapacitation. 
He said that state law was controlling, and that Members could 
conceivably sign durable powers of attorney to allow others to 
activate their resignations. But there is no support in the 
Constitution, Federal law or House precedents for this kind of 
procedure, and it has never been attempted in our history.
    Later in the hearing, Representative Sensenbrenner said 
that the Speaker could announce a vacancy based upon 
incapacitation to count toward the 101-seat trigger. But the 
Constitution does not permit this. As long as a Member has been 
duly elected and sworn, the only way to effect removal would be 
through expulsion.

What happens if the number of House vacancies is reduced after the 
        ``trigger'' is pulled but before special elections occur as 
        provided by H.R. 2844?

    The bill does not address all possible conditions 
surrounding potential mass vacancies. If special elections were 
already in progress to fill vacancies under normal 
circumstances prior to a catastrophe, and as a result reduced 
the number of vacancies below 101, would special elections 
under the bill's provisions continue? Would the trigger, once 
pulled, be impossible to stop until all of the bill's 
requirements were executed?

Could the bill's provisions invite additional election contests for 
        House seats?

    If a state violates provisions of the statute, such as by 
missing the various timetables for nominating candidates by 
political parties, or for meeting the 45-day deadline for 
completing the special election process, would the 
qualifications of any Member chosen as a result of such a 
special election be open to challenge in the courts, or in the 
House, resulting in additional delays in filling vacant seats? 
If the bill creates an unrealistic timeframe and states fail to 
comply, potential challenges to election results could create 
instability when the country least needs it.

Would absentee voters, military voters, and other Americans abroad be 
        disadvantaged by the bill's timetables?

    The bill may violate provisions of the Uniformed and 
Overseas Citizens Absentee Voting Act and the Help America Vote 
Act, affecting the rights of Americans serving in the military, 
their families and other Americans living abroad, by creating a 
time-frame too short to allow compliance with the various 
requirements of these laws. The Department of Defense has 
requested that states allow a minimum of 45 days from the time 
ballots are finalized --not from the time a vacancy is 
declared, as in this bill--to ensure the ability of these 
voters to fully participate in a Federal election.
    How can military personnel and their families and other 
Americans living abroad become aware of a special election, 
request absentee ballots, receive them once candidates become 
known, and return them in the time frame contemplated by the 
statute? Does the bill simply assume that somehow everything 
will work out satisfactorily?

Can Independent and Third Party candidates qualify for the ballot 
        within the bill's timeframe?

    The legislation is silent about independent or non-major-
party candidates. Assuming they could still attempt to run, 
they would be dependent on existing provisions of state laws 
which set qualifications and timeframes to get on the ballot, 
e.g. by collecting signatures. These provisions, which differ 
widely among the states, may no longer be viable within the 
scheme of H.R. 2844. But failure to allow such access, i.e. 
discriminating in favor of candidates of established major 
political parties, could result in challenges during the 
conduct of elections or to the election results.

How would political parties nominate candidates?

    The bill authorizes, but apparently does not require 
(``may'' is used in the text), political parties in a state 
which are authorized to nominate candidates to choose a nominee 
within 10 days. This method, with varying timeframes, is 
already used for specialelections in some states, and the 
timeframe obviously precludes a primary.
    What happens if a party can't agree on a nominee, or misses 
the 10-day threshold? It is not clear what the alternative 
mechanism for selecting a party nominee might be. Surely it 
would not be desirable to create a situation where a major 
political party might be forced to, in effect, concede the 
election because it could not comply with the deadlines. In a 
variety of such cases in the past where party primaries were 
not held, there have been intense contests at party committee 
meetings or conventions to win nominations which in many cases 
would be tantamount to winning election to the House.
    But, as noted earlier, in states which conduct primaries to 
choose nominees before holding a special election, or in states 
which hold special elections without regard to party--such as 
California and Texas--the scheme provided by the bill would 
radically change the political environment.
    It is not clear what would happen if the states want to use 
some other method to choose party nominees but still have the 
special election within a 45-day period. Minnesota, in the 1977 
special election discussed previously, held both a primary and 
special election within 28 days, but the primary occurred 
outside of the 10-day window for choosing party nominees 
established by H.R. 2844. Would such a process still be 
permitted?

What happens after the special elections have occurred?

    The bill does not address issues of ballot counting, 
processing and certification, all of which are conducted 
pursuant to state laws, which must be completed before winners 
can be declared and present themselves to the House to take the 
oath of office, thereby ending the vacancies in House seats. 
Seating in the absence of a certificate of election would be at 
the discretion of the House.
    There would be a period of several weeks before states 
could properly certify the results of any special elections. 
States have laws relating to the receipt of absentee ballots 
and ballots from the military and others living abroad, and for 
counting provisional ballots, before a certification could 
occur. There is also the possibility of recounts of close 
races.

What is the timeframe for legal action to resolve controversy over 
        vacancies declared by the Speaker?

    In the section of the bill which falls under Judiciary 
Committee jurisdiction (section 2(b)(4)(B), lawsuits which 
don't relate to the Speaker's announcement of vacancies are not 
subject to the two day and three day limits on bringing a case 
and rendering a decision. Litigants could conceivably seek an 
injunction against conduct of such elections due to alleged 
constitutional violations or violations of other relevant 
provisions of law, or of other provisions of the new statute. 
That could result in a substantial increase in the time it 
takes to actually conduct such elections.

                                EXHIBITS

    Attached is a description of the Federal Voting Assistance 
Program (FVAP), an agency of the Department of Defense, 
reprinted from their website. (www.fvap.gov):

Exhibit #1

    The Federal Voting Assistance Program (FVAP) administers 
the federal responsibilities of the Presidential designee 
(Secretary of Defense), under the Uniformed and Overseas 
Citizens Absentee Voting Act of 1986 (UOCAVA). The Act covers 
more than six million potential voters. The FVAP has three 
distinct goals. These are to:
          1. Inform and educate U.S. citizens worldwide of 
        their right to vote;
          2. Foster voting participation; and
          3. Protect the integrity of, and simultaneously 
        enhance, the electoral process at the Federal, State 
        and local levels.
    The FVAP provides U.S. citizens worldwide a broad range of 
non-partisan information and assistance to facilitate their 
participation in the democratic process--regardless of where 
they work or live.
    The UOCAVA requires that the states and territories allow 
certain U.S. citizens, as defined below, to register and vote 
absentee in elections for Federal office. These groups include:
           Members of the Uniformed Services (including 
        Army, Navy, Air Force, Marine Corps, Coast Guard);
           Merchant Marine;
           Eligible family members of the above;
           Commissioned Corps of the Public Health 
        Service, and Commissioned Corps of the National Oceanic 
        and Atmospheric Administration;
           U.S. citizens employed by the Federal 
        Government residing outside the U.S.; and
           All other private U.S. citizens residing 
        outside the U.S.
    Some states and territories also allow citizens covered by 
the UOCAVA to register and vote in state and local elections as 
well.
    The FVAP also acts on behalf of the Secretary of Defense to 
administer the Federal responsibilities of the National Voter 
Registration Act (NVRA), which designates armed forces 
recruiting offices nationwide as voter registration agencies 
allowing eligible U.S. citizens to apply for voter 
registration, or apply to change voter registration data, at 
6000 Armed Forces Recruitment Offices nationwide.
    We accomplish our mission by providing services to:
           Thousands of military Voting Assistance 
        Officers (VAOs) around the globe;
           More than 250 Embassy and Consulate VAOs;
           Hundreds of state officials;
           Nearly 13,000 local government officials;
           Hundreds of representatives of worldwide 
        organizations and corporations;
           Personnel at 6,000 Armed Forces Recruiting 
        Offices; and
           All citizens eligible to apply for voter 
        registration, or change voter registration data at 
        Armed Forces Recruitment Offices.
           In all, these total approximately 205 
        million U.S. citizens of voting age.

Exhibit #2

    Attached below is an example of correspondence from the 
Federal Voting Assistance Program (FVAP) to the states (in this 
case, Rhode Island) recommending changes in state laws, 
regulations or policies affecting the handling of absentee 
ballots for military and overseas voters. The FVAP recommends 
that states allow a 45-day transit time for such voters to 
receive, vote and return their absentee ballots and recommends 
sample language for the states to consider.

The Need for 45-Day Ballot Transit Time

    Rhode Island military and overseas voters continue to have 
an extremely short period of time to receive, vote, and return 
their absentee ballots in order to be counted (21 days). While 
electronic transmission of election materials offers an 
alternative to inadequate ballot transit time, insufficient 
ballot transit time through the mail remains the primary 
obstacle to timely delivery of absentee ballots for those who 
request them. Our post election surveys and Postal Service 
statistics indicate that a 45-day transit time is needed for 
absentee ballots sent through international mail or the 
military APO/FPO (overseas) post offices. This round trip 
transit time is especially necessary because of the remote 
location of many military personnel and overseas citizens such 
as sailors and marines aboard ship, airmen and sailors at 
isolated tracking sites around the world, as well as Department 
of State personnel and citizen employees of American 
multinational corporations in remote areas.

Sample Language

    For all elections, the official charged with the printing 
and distribution of ballots and election materials shall print 
as many absentee ballots as may be necessary as soon as 
possible after receiving the information concerning candidates 
and measures to be voted on at an election, and balloting 
materials shall be mailed not later than the 45th day before 
the election.

Emergency Authority for Chief Election Official

    During a period of a declared emergency or other situation 
where there is a short time frame for ballot transmission, it 
is recommended that Rhode Island's Chief Election Official have 
the authority in law to designate alternate methods for 
handling absentee ballots to ensure voters have the opportunity 
to exercise their right to vote. The Chief Election Official 
and the Federal Voting Assistance Program could mutually 
establish expeditious methods for handling absentee ballots 
including electronic transmission.

Sample Language

    If a national or local emergency or other situation arises 
which makes substantial compliance with the provisions of the 
Uniformed and Overseas Citizens Absentee Voting Act impossible 
or unreasonable, such as a natural disaster or an armed 
conflict involving United States Armed Forces, or mobilization 
of those forces, including State National Guard and Reserve 
components, the Chief Election Official may prescribe, by 
emergency orders or rules, such special procedures or 
requirements as may be necessary to facilitate absentee voting 
by those citizens directly affected who otherwise are eligible 
to vote in the state.
    The Chief Election Official shall adopt rules describing 
the emergency powers and the situations in which the powers 
will be exercised.

                                   John B. Larson.
                                   Juanita Millender-McDonald.
                                   Robert A. Brady.

                                
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