89–006 

111TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 111–457 

AMENDING THE HELP AMERICA VOTE ACT OF 2002 TO PROHIBIT STATE 

ELECTION OFFICIALS FROM ACCEPTING A CHALLENGE TO AN INDIVIDUAL’S ELIGIBILITY TO REGISTER TO VOTE IN AN ELECTION FOR FEDERAL OFFICE OR TO VOTE IN AN ELECTION FOR FEDERAL OFFICE IN A 

JURISDICTION ON THE GROUNDS THAT THE INDIVIDUAL RESIDES IN A 

HOUSEHOLD IN THE JURISDICTION WHICH IS SUBJECT TO FORECLOSURE PROCEEDINGS OR THAT THE JURISDICTION WAS ADVERSELY 

AFFECTED BY A HURRICANE OR OTHER MAJOR DISASTER, AND FOR 

OTHER PURPOSES 

MARCH 25, 2010.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. BRADY of Pennsylvania, from the Committee on House 

Administration, submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany H.R. 3489] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on House Administration, to whom was referred 

the bill (H.R. 3489) to amend the Help America Vote Act of 2002 

to prohibit State election officials from accepting a challenge to an 

individual’s eligibility to register to vote in an election for Federal 

office or to vote in an election for Federal office in a jurisdiction on 

the grounds that the individual resides in a household in the jurisdiction which is subject to foreclosure proceedings or that the jurisdiction was adversely affected by a hurricane or other major disaster, and for other purposes, having considered the same, report 

favorably thereon without amendment and recommend that the bill 

do pass. 

PURPOSE OF THE LEGISLATION

H.R. 3489 would prohibit State election officials from accepting 

challenges to a voter’s eligibility to register and vote on the 

grounds that the voter resides in a household subject to foreclosure 


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proceedings, or in an area which has been affected by a natural disaster. 

Since voter registration is linked to residence, the present foreclosure crisis has the potential to do considerable damage to the integrity of our nation’s elections. In the months leading up to the 

2008 presidential election, national media widely reported that political operatives had planned to use lists of foreclosed properties 

in Michigan and Ohio to challenge voters at the polls. The plans 

were only disavowed after a federal court lawsuit was filed to protect voters’ rights. Reports of these potential threats of disenfranchisement resulted in election officials around the country receiving 

numerous calls from foreclosed homeowners inquiring about their 

voting status. 

The experience of the 2008 Presidential election teaches us that 

there is a real danger that displaced voters may be misled or intimidated into not casting ballots. However, it must be emphasized 

that there is no rational basis for using a foreclosure list to challenge voter eligibility. Eligible voters may be renting a foreclosed 

property or working with a bank to refinance. It is evident that 

challenges based on foreclosure proceedings at the polls may be 

used only to harass and embarrass those who are already in difficult situations, and no voter should have to face such harassment. 

Additionally, voters displaced by hurricanes or other natural disasters have the right to vote in communities to which they intend to 

return. 

H.R. 3489 would not preclude a challenge to a person’s eligibility 

to register and vote based on sound evidence that the person was 

committing fraud or was not a citizen or was otherwise ineligible 

to vote. Rather, H.R. 3489 will help to ensure the integrity of our 

elections by shielding eligible voters from challenges that were 

made in bad faith by partisan political operatives. It has been a 

long time since property-related requirements for voting were 

eliminated, and laws in many states do not disenfranchise voters 

facing foreclosure or displaced by natural disasters. H.R. 3489 will 

prevent such bad-faith challenges nationwide, and ensure that voters will not lose their civil right to vote because they have lost, or 

may lose, their homes. 

SUMMARY OF THE LEGISLATION

H.R. 3489 would amend Title III of the Help America Vote Act 

of 2002 by inserting a new Section 303A which would prohibit 

State election officials from accepting a challenge to an individual’s 

eligibility to register to vote in an election for Federal office or to 

vote in an election for Federal office on the grounds that the individual is residing in a household which is subject to foreclosure 

proceedings or if the individual resides in a jurisdiction which had 

been adversely affected by hurricanes or other natural disaster. 

The bill’s provisions will be effective for the November 2010 general 

election, and for each subsequent election for Federal office. 


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COMMITTEE CONSIDERATION OF THE LEGISLATION 

INTRODUCTION AND REFERRAL

On July 31, 2009, Rep. Jackson of Illinois introduced H.R. 3489, 

which was referred exclusively to the Committee on House Administration. Similar legislation was introduced during the second session of the 110th Congress. 

MARKUP

On November 4, 2009, the Committee on House Administration 

met to mark up H.R. 3489. The Committee considered and rejected 

three amendments offered by the Ranking Minority Member, Rep. 

Daniel E. Lungren of California. 

The first amendment would have stricken from the bill language 

prohibiting challenges that are ‘‘not based on good cause’’ and 

would have strictly limited the definition of ‘‘not based on good 

cause.’’ The amendment was not agreed to by voice vote. 

The second amendment would have permitted residency challenges to resume 18 months following the Presidential declaration 

of a natural disaster, regardless of whether the area affected had 

recovered or not. The amendment was not agreed to by voice vote. 

The final amendment would have permitted challengers to confront voters at the polls who had conclusively lost their homes in 

a foreclosure proceeding. The amendment was not agreed to by 

voice vote. 

The Committee then voted, with a quorum present, to order H.R. 

3489 reported favorably to the House, without amendment, by a 

record vote of 4 ayes to 2 noes. 

MATTERS REQUIRED UNDER THE RULES OF THE HOUSE 

COMMITTEE RECORD VOTES

Clause 3(b) of House rule XIII requires that the results of each 

record vote on an amendment or motion to report, together with 

the names of those voting for and against, be printed in the committee report. One record vote was taken on H.R. 3489, on the motion to order the bill reported favorably to the House: 

Member Ayes Noes Present 

Ms. Lofgren ..................................................................................................................................... .......... .......... ................

Mr. Capuano ................................................................................................................................... X .......... ................

Mr. Gonzalez .................................................................................................................................... .......... .......... ................

Mrs. Davis (CA) ............................................................................................................................... X .......... ................

Mr. Davis (AL) ................................................................................................................................. X .......... ................

Mr. Lungren ..................................................................................................................................... .......... X ................

Mr. McCarthy ................................................................................................................................... .......... .......... ................

Mr. Harper ....................................................................................................................................... .......... X ................

Mr. Brady ........................................................................................................................................ X .......... ................

Total ....................................................................................................................................... 4 2 ................

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee states that the findings 

and recommendations of Committee, based on oversight activities 


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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. 3489 is to protect eligible voters by prohibiting election officials from accepting challenges to a voter’s eligibility to register and vote in Federal elections on the grounds that the voter 

is residing in a household subject to foreclosure proceedings or in 

an area which has been affected by natural disaster. 

CONSTITUTIONAL AUTHORITY

In compliance with clause 3(d)(1) of rule XIII, the Committee 

states that Article I of the U.S. Constitution grants Congress the 

authority to make laws governing the time, place and manner of 

holding Federal elections. 

FEDERAL MANDATES

Section 423 of the Congressional Budget Act requires a committee report on any public bill or joint resolution that includes a 

federal mandate to include specific information about such mandates. The Committee states that H.R. 3489 does not include federal mandates. 

PREEMPTION CLARIFICATION

Section 423 of the Congressional Budget Act requires a committee report on any public bill or joint resolution to include a 

statement on the extent to which the measure is intended to preempt state or local law. The Committee states that H.R. 3489 is intended to preempt any state or local law to the contrary. 

EARMARK IDENTIFICATION

In response to the requirements of clause 9 of rule XXI, the Committee reports that H.R. 3489 does not include any congressional 

earmarks, limited tax benefits or limited tariff benefits as defined 

in clause 9(e), 9(f) or 9(g) of rule XXI. 

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: 


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U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, November 20, 2009. 

Hon. ROBERT A. BRADY, 

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. 3489, a bill to amend the 

Help America Vote Act of 2002 to prohibit state election officials 

from accepting a challenge to an individual’s eligibility to register 

to vote in an election for federal office in a jurisdiction on the 

grounds that the individual resides in a household in the jurisdiction which is subject to foreclosure proceedings or that the jurisdiction was adversely affected by a hurricane or other major disaster, 

and for other purposes. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

DOUGLAS W. ELMENDORF, Director. 

Enclosure. 

H.R. 3489—A bill to amend the Help America Vote Act of 2002 to 

prohibit state election officials from accepting a challenge to an 

individual’s eligibility to register to vote in an election for federal office or to vote in an election in a jurisdiction which is 

subject to foreclosure proceeding or that the jurisdiction was adversely affected by a hurricane or other major disaster, and for 

other purposes 

H.R. 3489 would prohibit state election officials, beginning in November 2010, from challenging voters’ eligibility to participate in 

federal elections on the grounds that they reside in a property that 

is subject to foreclosure proceedings or is located in an area damaged by a hurricane or other major disaster. CBO estimates that 

implementing H.R. 3489 would have no significant impact on the 

federal budget. Enacting the bill would not affect direct spending 

or revenues. 

CBO has not reviewed H.R. 3489 for intergovernmental or private-sector mandates. Section 4 of the Unfunded Mandates Reform 

Act excludes from the application of that act any legislative provisions that would enforce the constitutional rights of individuals. 

CBO has determined the legislation falls within that exclusion because it would protect the voting rights of individuals. 

The CBO staff contact for this estimate is Matthew Pickford. The 

estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget 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): 


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HELP AMERICA VOTE ACT OF 2002 

SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

(a) * * * 

* * * * * * * 

(b) TABLE OF CONTENTS.—The table of contents of this Act is as 

follows: 

* * * * * * * 

TITLE III—UNIFORM AND NONDISCRIMINATORY ELECTION TECHNOLOGY 

AND ADMINISTRATION REQUIREMENTS 

Subtitle A—Requirements 

* * * * * * * 

Sec. 303A. Prohibiting acceptance of challenges to eligibility to register or eligibility to vote in Federal elections not based on good cause. 

* * * * * * * 

TITLE III—UNIFORM AND NONDISCRIMINATORY ELECTION TECHNOLOGY 

AND ADMINISTRATION REQUIREMENTS 

Subtitle A—Requirements 

* * * * * * * 

SEC. 303A. PROHIBITING ACCEPTANCE OF CHALLENGES TO ELIGIBILITY TO REGISTER OR ELIGIBILITY TO VOTE IN FEDERAL ELECTIONS NOT BASED ON GOOD CAUSE. 

(a) IN GENERAL.—A State or local election official may not accept 

a challenge to an individual’s eligibility to register to vote in an 

election for Federal office in a jurisdiction or to vote in an election 

for Federal office in a jurisdiction which is not based on good cause. 

(b) CHALLENGES BASED ON CERTAIN GROUNDS NOT CONSIDERED

GOOD CAUSE.—For purposes of subsection (a), a challenge to an individual’s eligibility to register to vote in an election for Federal office in a jurisdiction or to vote in an election for Federal office in 

a jurisdiction is not based on good cause if the challenge is based 

on any of the following grounds: 

(1) The individual resides in a household in the jurisdiction 

which is subject to foreclosure proceedings. 

(2) The jurisdiction is included in a geographic area which 

was adversely affected by a hurricane or other major disaster 

declared by the President under section 401 of the Robert T. 

Stafford Disaster Relief and Emergency Assistance Act (42 

U.S.C. 5170). 

(c) EFFECTIVE DATE.—This section shall apply with respect to the 

regularly scheduled general election for Federal office held in November 2010 and each subsequent election for Federal office. 

* * * * * * * 


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TITLE IV—ENFORCEMENT 

SEC. 401. ACTIONS BY THE ATTORNEY GENERAL FOR DECLARATORY 

AND INJUNCTIVE RELIEF. 

The Attorney General may bring a civil action against any State 

or jurisdiction in an appropriate United States District Court for 

such declaratory and injunctive relief (including a temporary restraining order, a permanent or temporary injunction, or other 

order) as may be necessary to carry out the uniform and nondiscriminatory election technology and administration requirements under sections 301, 302, øand 303¿ 303, and 303A. 

* * * * * * * 


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1See Peter K. Schalestock, Monitoring of Election Processes by Private Actors, 34 WM. MITCHELL L. REV. 577 (2008). 2See ALA. CODE § 17–8–7, KS. STAT. ANN. § 25–414, and WYO. STAT. ANN. § 22–15–108, –109 

(b). 

ADDITIONAL VIEWS 

We believe that every lawfully eligible voter should be able to 

cast a ballot. This bill is not necessary to preserve that principle. 

Without the benefit of any hearings or testimony showing a need, 

it invokes the heavy hand of federal legislation. Worse, it does so 

in a way that reaches far beyond its stated purpose and undermines the ability of states to ensure that lawful votes are not diluted by ballots from ineligible voters. 

Every state except Oklahoma has adopted laws allowing for challenges of voter eligibility before election day, at the polls, or when 

an absentee ballot is cast.1 Of these, forty-six states allow challenges by private citizens; Alabama, Kansas, and Wyoming limit 

the opportunity to initiate a challenge to election officials.2 Challenges serve the purpose of providing a final check against fraudulent or illegal votes before ballots are cast and tabulated. Exercising their authority under Article I, section 4 of the Constitution 

to prescribe the manner of elections, the states have overwhelmingly chosen to make challenges a part of the process—preserving 

accountability and integrity in the democratic system. 

This legislation establishes a new, nationwide requirement for 

voter challenges—inserting the federal government into a process 

previously left to the states. It requires that all challenges be based 

on ‘‘good cause.’’ At first blush one might think that only challenges 

based on good cause would be sustained under current law, but 

without a definition and explanation ‘‘good cause’’ can mean anything at all. The bill does not define ‘‘good cause,’’ leaving it open 

to creative lawyers and disparate courts in jurisdictions around the 

country to apply this federal statute differently in different places. 

Because no hearings were held, it is impossible to determine 

whether the bill’s sponsor intends to apply a new standard to every 

challenge in every state, or whether this reflects a drafting error. 

If the purpose of the bill is to impose a ‘‘good cause’’ standard on 

every challenge to a voter’s eligibility, that is a substantial intrusion into state authority that deserves at least to be considered in 

an open hearing. If, on the other hand, the bill’s purpose is limited 

to the narrower situations of challenges involving foreclosures or 

natural disasters, it should be re-written to reflect that intent. 

Moreover, the bill as written restricts challenges ‘‘based on’’ two 

specific grounds—a foreclosure proceeding or a natural disaster. 

Again, the bill’s intent is unclear. It could mean to restrict any 

challenge in which those grounds are a factor—regardless of the 

other evidence available to support the challenge. In that case it 

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mate and necessary challenges. On the other hand, the bill might 

be intended to restrict only challenges based solely on the stated 

grounds. All of the documents introduced by the majority in support of the bill refer to challenges based solely on the existence of 

a foreclosure proceeding. If the bill is meant to prevent the hypothetical scenario described in these documents, it should be re-written to say so. And we emphasize that the scenario is purely hypothetical; there is no evidence before the committee or known to us 

that a single voter or ballot has been challenged because of a foreclosure proceeding. Moreover, the one instance where a political 

party official allegedly expressed an intent to do so, the person 

quoted denied having made the statement. 

We offered an amendment to clarify that the bill would only restrict challenges based solely on grounds of foreclosure proceedings 

and declared natural disasters, not imposing a new and ill-defined 

standard on all challenges and not restricting challenges based on 

other evidence where the voter happens also to live in a home 

being foreclosed or in a disaster area. This amendment would have 

made the bill a focused effort to address the purposes advanced by 

the majority. The majority rejected the amendment. 

We also offered an amendment to clarify that while a pending 

foreclosure is not grounds for a challenge standing alone, a completed foreclosure—where the voter has lost ownership of the residence in question—may be. The question of whether the challenge 

would be successful would still be up to state law, but the question 

would be allowed to be asked. The majority rejected this amendment. 

Finally, we offered an amendment to place a limit on the duration of the challenge restrictions in a disaster area. As written, the 

bill applies indefinitely to any geographic area subject to a presidential disaster declaration. Such an open-ended restriction is overly broad and unnecessary. Our amendment would have limited the 

duration of the restriction to 18 months, the same time period that 

the Federal Emergency Management Agency provides housing assistance to disaster victims. Again, the majority rejected this 

amendment. 

Based on comments by majority members of the Committee, we 

infer that the reason for including natural disaster language in the 

bill is to address perceived problems arising from Hurricane 

Katrina and its aftermath. While we have no other record on this 

issue, we do have two letters from election officials in affected 

states—the Secretary of State of Mississippi and the director of 

elections of Louisiana. Both tell us that their states have addressed 

hurricane-related voter registration problems and that there is no 

need for federal action. 

There is no testimonial or documentary support before the Committee that would suggest natural disasters should be included in 

this legislation. As such, the Committee is asking the House to act 

on a bill without having held even one hearing or offering any evidence that a problem exists requiring the enactment of a federal 

statute. 

The bill as approved by the Committee majority creates an intrusive national standard that is overbroad, unclear, and certain to 

create litigation. The practical effect will be that since any chalVerDate Nov 24 2008 14:58 Mar 26, 2010 Jkt 089006 PO 00000 Frm 00009 Fmt 6604 Sfmt 6604 E:\HR\OC\HR457.XXX HR457

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lenge is subject to litigation under the ‘‘good cause’’ standard, few 

challenges will be brought even where there is evidence to support 

them. In cases where a foreclosure or disaster declaration exists, 

challenges will face an extraordinary standard regardless of the 

evidence. 

Under the guise of addressing specific problems, the majority is 

pushing a policy that will make it harder to prevent fraudulent or 

illegal votes—and therefore will make it easier to cast them. We 

hope that this is not the majority’s intent, but we are certain it will 

be their result. 

DANIEL E. LUNGREN. 

KEVIN MCCARTHY. 

GREGG HARPER. 

Æ 


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