```

[Senate Report 108-377]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 736
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-377

======================================================================
 
                 AMERICAN SAMOA DELEGATE PLURALITY VOTE

                                _______
                                

               September 28, 2004.--Ordered to be printed

                                _______
                                

   Mr. Domenici, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 2010]

    The Committee on Energy and Natural Resources, to which was 
referred the Act (H.R. 2010) to protect the voting rights of 
members of the Armed Services in elections for the Delegate 
representing American Samoa in the United States House of 
Representatives, and for other purposes, having considered the 
same, reports favorably thereon without amendment and 
recommends that the Act do pass.

                                Purpose

    The purpose of H.R. 2010, as ordered reported, is to 
protect the voting rights of members of the Armed Services in 
elections for the Delegate representing American Samoa in the 
United States House of Representatives, and for other purposes.

                          Background and Need

    In 1978, Congress created the position of a non-voting 
Delegate to represent the Territory of American Samoa in the 
U.S. House of Representatives (Public Law 95-556). Pursuant to 
such law, the American Samoa Delegate is elected to office at 
large, by separate ballot, and by a majority vote. If no 
candidate receives a majority of the votes cast, a runoff 
election is held between the two candidates receiving the 
highest number of votes. Any such runoff takes place two weeks 
following the election.
    The bill's sponsor, the current American Samoa Delegate, 
maintains that the two-week period between the general election 
and runoff for the Delegate office deprives members of the 
Armed Forces on active duty, and other overseas voters, of the 
opportunity to participate in the Federal election process in 
American Samoa. According to the findings section of H.R. 2010, 
overseas voters who rely on absentee ballots are 
disenfranchised because the Federal postal service does not 
operate daily in American Samoa. Instead, postal service to 
American Samoa is dependent upon commercial air service 
originating in Hawaii and is delivered only twice a week. This 
situation has proven problematic in sending and receiving 
absentee ballots, in a timely manner, during the 14-day runoff 
election period.
    H.R. 2010 would provide for the election of the American 
Samoa Delegate to the U.S. House of Representatives by 
plurality. The bill also authorizes the legislature of American 
Samoa (the Fono) to provide for primary elections for the 
Delegate race. If such primary elections are established by the 
Fono, H.R. 2010 requires the Delegate to be elected by a 
majority of votes cast in any subsequent general election.

                          Legislative History

    H.R. 2010 was introduced by Representative Faleomavaega (D-
AS) on May 7, 2003, and referred to the House Committee on 
Resources. The Resources Committee conducted a hearing on H.R. 
2010 on October 29, 2003, and favorably reported (H. Rept. 108-
515) the bill on June 1, 2004. The House passed H.R. 2010 on 
June 14, 2004. The bill was received in the Senate on June 15, 
2004, and referred to the Committee on Energy and Natural 
Resources. A hearing before the Subcommittee on Public Lands 
and Forests was conducted on July 14, 2004. The Energy and 
Natural Resources Committee, on September 15, 2004, by a 
unanimous vote of a quorum present, favorably reported H.R. 
2010.

                        Committee Recommendation

    The Senate Committee on Energy and Natural Resources, in an 
open business session on September 15, 2004, by a unanimous 
voice vote of a quorum present, recommends that the Senate pass 
H.R. 2010 without amendment.

                      Section-by-Section Analysis

    Section 1 lists Congressional findings.
    Section 2 amends Public Law 95-556 to provide for election 
of the Delegate by plurality. This section also authorizes the 
legislature of American Samoa to establish a primary election 
for the Delegate office and specifies that if such primary is 
established, then the Delegate shall be elected by a majority 
of votes cast in any subsequent general election.
    Section 3 establishes the effective date for the plurality 
election system as January 1, 2006. This section also sets 
forth the effective date for the Fono's ability to establish a 
primary as January 1, 2005.

                   Cost and Budgetary Considerations

    The following estimate of the costs of this measure has 
been provided by the Congressional Budget Office:

H.R. 2010--An act to protect the voting rights of members of the armed 
        services in elections for the delegate representing American 
        Samoa in the United States House of Representatives, and for 
        other purposes

    H.R. 2010 would amend Public Law 95-556, which provides the 
Territory of American Samoa with a nonvoting delegate to the 
U.S. House of Representatives. Specifically, the legislation 
would revise the voting procedures used for the election of 
American Samoa's delegate. Currently, the delegate must be 
elected by a majority of votes, and a run-off election is held 
14 days after the initial vote if no candidate receives a 
majority. Under H.R. 2010, only a plurality would be required 
and no run-off election would be held. However, if the 
legislature of American Samoa were to provide for primary 
elections for the election of the delegate, then the delegate 
would be elected by a majority of votes cast in a subsequent 
general location. CBO estimates that implementing H.R. 2010 
would have no impact on the federal budget. The legislation 
would not affect direct spending or revenues.
    Section 4 of the Unfunded Mandates Reform Act excludes from 
the application of that act any legislative provisions that 
enforce the constitutional rights of individuals. CBO has 
determined that H.R. 2010 would fall within that exclusion 
because it would protect the voting rights of absentee voters, 
including members of the armed forces. Therefore, CBO has not 
reviewed the bill for mandates.
    On May 21, 2004, CBO transmitted a cost estimate for H.R. 
2010, as passed by the House Committee on Resources on May 5, 
2004. The two versions of the legislation are identical, as are 
the cost estimates.
    The CBO staff contacts for this estimate are Matthew 
Pickford (for federal costs) and Marjorie Miller (for the state 
and local impact). This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out H.R. 2010. The Act is not a regulatory measure in 
the sense of imposing government-established standards or 
significant responsibilities on private individuals and 
businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of H.R. 2010.

                        Executive Communications

    On July 9, 2004, the Committee on Energy and Natural 
Resources requested legislative reports from the Department of 
the Interior and the Office of Management and Budget 
settingforth executive views on H.R. 2010. These reports had not been 
received at the time the report on H.R. 2010 was filed. The testimony 
provided by the Department of the Interior at the Subcommittee hearing 
follows:

Statement of David B. Cohen, Deputy Assistant Secretary of the Interior 
                          for Insular Affairs

    Current law provides that the Delegate to the House of 
Representatives from American Samoa shall be elected by 
majority vote. Under current practice, a runoff is conducted 
two weeks after the general election in November of each even 
numbered year if no candidate for Delegate receives a majority 
in the general election. The result is that members of the 
armed services and other voters overseas may be disenfranchised 
in the runoff election due to transportation and communication 
difficulties that delay the return of runoff ballots in time 
for counting.
    H.R. 2010 would establish a flexible system for ensuring 
that the votes of American Samoans, who are overseas, are 
counted. In the first instance, H.R. 2010 would substitute a 
plurality of votes for election of Delegate for the currently 
required majority. If, however, the members of the American 
Samoa Fono, or legislature, believe that a majority vote is 
preferable, H.R. 2010 would authorize the Fono to establish a 
primary election prior to the November balloting.
    The issues raised in this bill are clearly within 
Congress's authority to determine, given American Samoa's 
special status as a U.S. territory. However, we note that, 
subject to certain limitations, the citizens of the various 
states are generally given the latitude to establish, through 
their elected representatives, the policies that govern 
elections for Federal officials who will represent the people 
of those states.
    We recognize that in the special case of American Samoa, 
this is a matter for Congress to decide. The wishes of the 
people of American Samoa, however, should be given the same 
deference that the wishes of the citizens of a state would be 
given under analogous circumstances. We respectfully suggest, 
therefore, that the Congress note the positions of recognized 
leaders of the territory, in order to discern the preferences 
of the people of American Samoa. If the Congress finds that 
this bill is a reasonable reflection of the wishes of the 
people of American Samoa, the Administration would have no 
objection to its enactment. We would like to stress, however, 
that to the extent that deficiencies in the current system may 
result in the disenfranchisement of absentee voters, including 
the many men and women from American Samoa who serve honorably 
in our armed forces, we would urge Congress to correct any such 
deficiencies as soon as possible.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
H.R. 2010, as ordered 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):

                        ACT OF OCTOBER 31, 1978

                          (Public Law 95-556)

 AN ACT To provide that the Territory of American Samoa be represented 
by a nonvoting Delegate to the United States House of Representatives, 
and for other purposes

           *       *       *       *       *       *       *

    Sec. 2. (a) The Delegate shall be elected by the people 
qualified to vote for the popularly elected officials of the 
Territory of American Samoa at the general Federal election of 
1980, and thereafter at such general election every second year 
thereafter. The Delegate shall be elected at large, by separate 
ballot, and by a [majority] plurality of the votes cast for the 
office of Delegate. [If no candidate receives such majority, on 
the fourteenth day following such election a runoff election 
shall be held between the candidates receiving the highest and 
the second highest number of votes cast for the office of 
Delegate.] In case of a permanent vacancy in the office of 
Delegate, by reason of death, resignation, or permanent 
disability, the office of Delegate shall remain vacant until a 
successor shall have been elected and qualified.

           *       *       *       *       *       *       *

    (c) Establishment of Primary Elections.--The legislature of 
American Samoa may, but is not required to, provide for primary 
elections for the election of Delegate.
    (d) Effect of Establishment of Primary Elections.--
Notwithstanding subsection (a), if the legislature of American 
Samoa provides for primary elections for the election of 
Delegate, the Delegate shall be elected by a majority of votes 
cast in any subsequent general election for the office of 
Delegate for which such primary elections were held.

           *       *       *       *       *       *       *

                                  

```