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[House Report 111-457]
[From the U.S. Government Publishing Office]

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 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.

               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 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:

                                     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):

                     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.

           *       *       *       *       *       *       *

                         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, [and 303] 
303, and 303A.

           *       *       *       *       *       *       *

                            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.
---------------------------------------------------------------------------
    \1\See Peter K. Schalestock, Monitoring of Election Processes by 
Private Actors, 34 Wm. Mitchell L. Rev. 577 (2008).
    \2\See Ala. Code Sec. 17-8-7, Ks. Stat. Ann. Sec. 25-414, and Wyo. 
Stat. Ann. Sec. 22-15-108, -109 (b).
---------------------------------------------------------------------------
    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 is overly broad, unreasonably 
and unnecessarily restricting legitimate 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 challenge 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.

                                  
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