Thirty Six Days of Uncertainty
on House Administration on April 25, 2001.
Within a week of Election Day the first election reform proposals were introduced in Congress; the lame-duck session of the 106th Congress saw a passel of reform proposals.1 The 107th Congress picked up where the 106th left off; five different committees in the House and Senate held thirteen days of hearings as well as a two-day voting technology exposition.
Election reform legislation could well lead to the first-ever federal funds to help states and localities run elections. The leading bills before Congress would provide federal matching grants to help states and localities modernize voting equipment. Presently, expenses for running an election in a particular county are covered by the county and by proportionate assessments on the cities, school districts, special districts with candidates or initiatives on the ballot. Although federal candidates appear on the ballot, there has never been federal money involved. Doug Lewis, executive director of the Election Center, notes that there is no such thing as a federal election; rather, he states, "There are elections for federal office at the local level." "We've run the federal elections and we've run the state elections out of local coffers," Lewis says.
Many the bills introduced in Congress would have created a new federal entity, a temporary commission or a new independent federal agency, depending on the legislation. Proposed functions ranged from studying various issues relating to the electoral process and making recommendations to dispensing grants and serving as an elections information clearinghouse. Whether another study was necessary after the many election reform hearings on Capitol Hill and the activities and reports by various interested groups was an open question. Further, the Federal Election Commission's Office of Election Administration already had some responsibilities in this area, and the FEC requested supplemental funding to beef up the Office.
None of the legislation would have altered the fundamental local control of elections, but states and localities did want Congress act as the parent ("send us money"). Perhaps the major question Congress grappled with was the issue of mandates. At one of the many hearings on election reform Sen. Fred Thompson (R-TN) asked, "Should we just send the check or should we send it with strings?"
For a time it appeared the question might have been put, "Should we send it at all?" Even on an issue as fundamental to the workings of American democracy as election reform, partisanship came into play. In the House, in early 2001, the Democratic Caucus formed its own committee on election reform. In the Senate, prospects for progress did not look promising in August, as Democrats pushed a bill which had not a single Republican supporter. Then the Sept. 11, 2001 terrorist attacks and anthrax scares in October derailed legislative activity. It seemed doubtful whether any federal funding would happen in FY2002. This was a problem because of the significant lead time local jurisdictions need to choose and implement new voting systems and educate voters on their use; in the absence of federal largesse, many states may not make improvements in voting systems by the 2002 mid-term elections. However, by year's end there was encouraging progress in both the House and the Senate.
"The budget includes $400 million in 2003 for a new DOJ matching grant program to enable state and local jurisdictions to take advantage of improved votingtechnologies and administration, including voting machines, registration systems, voter education, and poll worker training. This new program is consistent with the recommendations of a report on election reform issued by a national commission headed by former Presidents Ford and Carter."On July 31, 2001, in remarks upon accepting the report of the bipartisan National Commission on Election Reform, Bush expressed his support for four broad principles of reform. On December 12, 2001, he issued a brief statement terming the Ney-Hoyer Help America Vote Act a "good start."
There was also activity in
the Department of Justice. On March 7, 2001, Attorney General John
Ashcroft announced a voting
rights initiative, including an increase in the number of attorneys
in the Civil Rights Division's Voting Section. In written testimony
for a Senate Judiciary Committee oversight hearing on May 21, 2002, Assistant
Attorney General Ralph F. Boyd, Jr. noted that Ashcroft had appointed a
Senior Counsel for Election Reform, Mark Metcalf, who has help from two
other attorneys. "These attorneys monitor and review State and federal
election reform proposals," Boyd said. Investigations into possible
civil rights violations in the 2000 presidential election were concluded.
On December 12, 2001, exactly one year after the U.S. Supreme Court's controversial 5-4 ruling in Bush v. Gore, the U.S. House of Representatives passed the "Help America Vote Act of 2001" (H.R. 3295) by a vote of 362 to 63. H.R. 3295, the Ney-Hoyer bill, would authorize $400 million to buyout punchcard machines; create a four-person Election Assistance Commission to serve as a clearinghouse and make Election Fund payments; authorize $2.65 billion in Election Fund payments to States over three years; establish minimum standards for State election systems; and establish programs to encourage students to serve as poll workers.
Before the Committee on House Administration took up election reform, there were efforts to establish a select committee on election reform. These bogged down in a dispute over the partisan make-up of such a committee; Democrats sought equal representation while Republicans proposed a committee with a 5-4 split and a two-thirds vote. Finally on March 28, 2001 the two sides determined they could not reach an agreement and that the committees with jurisdiction would take up the matter (House Administration as well as Rules).
Meanwhile, however, on February 14, 2001 the Democratic Caucus formed a Special Committee on Election Reform, chaired by Rep. Maxine Waters (D-CA). It developed a list of nineteen issues for review, ranging from uniform voting systems to returning ex-felons to the voting rolls; held a series of six field hearings: April 2 in Philadelphia, PA; April 20 in San Antonio, TX; May 19 in Chicago, IL; June 18 in Jacksonville, FL; July 21 in Cleveland, OH; and August 11 in Los Angeles, CA; and ultimately issued a report "Revitalizing Our Nation's Election System" [PDF] on November 6, 2001.
The Committee on House Administration was nonetheless the center of action, and several dozen election reform bills were referred to it. A significant advance occurred on May 10, 2001 when Chairman Ney and Ranking Member Rep. Steny Hoyer (D-MD) announced an agreement to produce bipartisan legislation based on five principles: elimination of punch-card voting systems; federal assistance to state and local governments for upgrading voting equipment; no federally mandated solutions; federal assistance to state and local governments for voter education, poll worker training and the like; and "the fact that our election system requires constant maintenance and vigilance." The new legislation was slated to be introduced in September but the terrorist attacks and anthrax scares sidetracked the discussion so that Ney and Hoyer did not introduce the bill until November 14, 2001, more than a year after the disputed election in Florida.
The Help America Vote Act of 2001, H.R.3295, built on some of the elements of Hoyer's original bill, the Voting Improvement Act, H.R.775. H.R. 775 called for establishment of an independent Election Administration Commission and had an initial appropriation of $432 million. The Ney-Hoyer bill also included a substantial part of the Voting Technology Standards Act of 2001, H.R.2275. On July 18, 2001, the House Science Committee passed H.R.2275, by Reps. Vernon Ehlers (R-MI) and James Barcia (D-MI), becoming the first committee to approve election reform legislation. That bill would have established a commission under the National Institute of Standards and Technology to develop voluntary technical standards for voting systems (note there are already voluntary Voting Systems Standards developed by the Federal Election Commission back in 1990, and that the FEC's Office of Election Administration was doing a major revision of these during 2001).
Once it was introduced, the Ney-Hoyer bill made rapid progress. The Committee on House Administration marked up the bill on November 15. The Rules Committee set the rules for debate and amendments in a meeting on December 11. (At that stage, the bill lost one significant provision, Title VII, which would have reduced postage rates for official election mail, due to a manager's amendment from Ney. An aide explained, "During discussions with postal officials and members of the Government Reform Committee we discovered that we may be able to accomplish what we needed with an administrative change as opposed to a legislative resolution. Therefore, we have agreed to form a task force to identify alternatives.") By the time H.R.3295 came to the floor for debate, it had 172 co-sponsors.
Local officials generally liked the Ney-Hoyer bill. "Everybody's waiting," said Ernest Hawkins, Registrar of Voters for Sacramento County, at a December 5 press conference of state and local election officials. (Sacramento County is one of nine California counties that uses the punchcard system). Doug Lewis of the Election Center called it "a solution to the worst of the ills of election 2000." The National Association of Secretaries of State executive committee and representatives from the National Conference of State Legislators endorsed Ney-Hoyer as did the National Federation of the Blind.
However, a number of civil rights, disability and labor groups said that H.R. 3295 did not go far enough, and backed a competing bill, the "Equal Protection of Voting Rights Act of 2001," S.565/H.R.1170, the Dodd-Conyers bill, which required minimum national standards. A Nov. 26 letter from the Leadership Conference on Civil Rights stated, "H.R. 3295 falls far short of fixing our electoral problems and, in some instances, represents a step backwards for civil rights laws." The American Civil Liberties Union termed the bill "toothless."
In terms of funding, backers
envisage a supplemental appropriation in early 2002 which would provide
initial funding of $650 million, including $400 million for the punchcard
buyout and $200 million in general funding. (Note that earlier in
2001 there was at least one preliminary effort to obtain funding in the
House; on July 25, 2001 Rep. Alcee Hastings (D-FL) introduced, but later
withdrew, an amendment to the FY2002 Treasury/Postal Appropriations bill,
which would have provided an additional $600 million to the Federal Election
On April 11, 2002, the U.S. Senate approved by a vote of 99-1 the "Equal Protection of Voting Rights Act of 2001" (S.A. 2688 to S.565) by a vote of 99-1. The bill would require states and localities to meet minimum national requirements for voting system standards, provisional voting, and computerized voter registration lists; establish two grant programs with $3.4 billion authorized over five years; and establish a 4-person Election Administration Commission to serve as a clearinghouse, administer the grants, and take over the running of the Office of Election Administration (now at the FEC).
Two other committees conducted hearings on election reform. The Committee on Governmental Affairs, then chaired by Sen. Fred Thompson (R-TN), held a two-part hearing on "Federal Election Practices and Procedures" on May 3, 2001 and May 9, 2001. The Committee on Commerce, Science and Transportation held a hearing on the need for election reform on March 7, 2001 and a second hearing on the reliability of voting technologies on May 8, 2001. [Sen. John McCain (R-AZ) introduced his own bill, S.368, the "American Voting Standards and Technology Act"].
Democrats gained the majority in the Senate on June 5, 2001. Sen. Christopher Dodd (D-CT) became chairman of the Committee on Rules and Administration, and under his leadership the committee held further election reform hearings on June 27 and June 28, 2001, as well as a field hearing in Atlanta on July 23, 2001. Dodd's bill, the "Equal Protection of Voting Rights Act," S.565, came to the fore. It would have established a temporary 12-member Commission on Voting Rights and Procedures and a grant program to be run through the Department of Justice. The bill would also have established federal requirements for voting systems (Title III).
Democrats argued "minimal federal requirements" in the areas of voting systems, provisional voting, and sample ballots were necessary. Republicans and some election administrators expressed serious misgivings about these "mandates." Doug Lewis, executive director of the Election Center, said of Dodd's bill, "As election administrators, most of us believe that's the wrong answer." "A one size fits all concept doesn't work in America," he stated. Washington Secretary of State Sam Reed expressed similar concerns, stating > that the bill "would attempt to fix elections procedures in our state that aren't broken at a sizable cost to taxpayers."
The differences were reflected in the appropriations process. On July 23, 2001 McConnell urged the Senate to appropriate money for election reform, stating, "Election reform delayed is election reform denied." Several days later he put a marker of $2 million for election reform in the FY2002 Treasury/Postal Appropriations bill (FEC administered grant program). In September 2001 Dodd put a $2 million marker in the FY2002 Commerce/Justice/State Appropriations bill (Justice administered grant program).
On August 2, 2001 the Rules and Administration Committee approved Dodd's bill, the "Equal Protection of Voting Rights Act," S.565, in a 10-0 straight Democratic vote; Republican members of the Committee boycotted the proceedings because Dodd would not allow McConnell's "Bipartisan Election Reform Act of 2001," S.953, to be considered although it had the backing of 70 Senators. Dodd's bill had the support of all Democratic Senators, but not a single Republican.
September 11 pushed election reform to the side, but by the end of October staffs of Sens. Dodd, McConnell, Kit Bond (R-MO), Charles Schumer (D-NY) and Torricelli began negotiating to see if a bipartisan approach could be found. Finally, on December 13, 2001 the five Senators came together in the Senate Radio/TV Gallery to announce that an agreement had been reached. "We put in standards without mandates," said Schumer. Bond emphasized the new bill's measures to counter vote fraud, noting that the agreement contained all proposals in the "Safeguard the Vote Act" he introduced back in March.
The Senate started considering amendments to the legislation during the week of February 13, 2002. Debate dragged on longer than anticipated. In particular, a provision of the bill advocated by Sen. Bond would require first-time voters to produce a photo ID or government document. However, under an amendment offered by Sens. Charles Schumer (D-NY) and Ron Wyden (D-OR) (Amendment 2973), voters who registered by mail would have needed only provide a signature or attestation to verify their identification. After attempts to resolve the differences over the Schumer-Wyden amendment proved unsuccessful, Majority Leader Tom Daschle announced on the evening of March 4 that the Senate would turn to the energy bill. Daschle committed to return to the debate on election reform, stating, "This is too important to let go." "We're just not quite there yet," he said from the floor of the Senate. Finally, on March 22, 2002, spurred by the upcoming Easter Recess, Senators arrived at a unanimous consent agreement limiting the number of amendments to be considered, setting the parameters of debate, and paving the way for its passage several weeks later.
Federal Reports [Note many of these are large PDF files]
Listing of Preliminary Proposals on Capitol Hill: 106th Congress
Just days after Election Day, on Nov. 12, 2000, Sen. Charles E. Schumer (D-NY) announced he would introduce legislation to have the Federal Election Commission do a study of America's voting system and create a matching grant program for the states. Sen. Schumer and Sen. Sam Brownback (R-KS) introduced the Voting Study and Improvement Act of 2000, S.3273, on Dec. 4. >>
On Dec. 5 Sens. Mitch McConnell (R-KY) and Robert G. Torricelli (D-NJ) announced the Election Reform Act which would create a permanent commission to study election administration, make recommendations and provide matching grants. McConnell promised hearings early in 2000, "sooner rather than later." In the House, Rep. Steve Rothman (D-NJ) announced similar legislation.
On Nov. 14, Rep. Peter DeFazio (D-OR) introduced the Federal Elections Review Commission Act, H.R.5631, which would establish a one year, 12-member Federal Elections Review Commission to study the electoral process and make recommendations. On Dec. 8 Rep. Nick Lampson (D-TX) introduced a very similar piece of legislation, the 21st Century Election Rules and Technology Act, H.R.5647, under which the proposed commission would establish an narrower range of issues than H.R.5631.
On Dec. 7, Rep. Marcy Kaptur (D-OH) introduced the Commission on the Comprehensive Study of Voting Practices and Procedures Act of 2000, H.R.5645, which would establish a one year, 5-member commission to study the electoral process and make recommendations.
Additionally, on Dec. 22, Sens. Tom Daschle (D-SD), Trent Lott (R-MS), Mitch McConnell (R-KY) and Chris Dodd (D-CT) requested that the General Accounting Office examine electoral procedures and produce a two-part report (Feb. 1, 2001 and March 31, 2001).
Copyright 2000, 2001, 2002 Eric M. Appleman/Democracy in Action