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[House Report 110-637]
[From the U.S. Government Publishing Office]

110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-637

======================================================================
 
TO DIRECT THE ELECTION ASSISTANCE COMMISSION TO ESTABLISH A PROGRAM TO 
MAKE GRANTS TO PARTICIPATING STATES AND UNITS OF LOCAL GOVERNMENT WHICH 
 WILL ADMINISTER THE REGULARLY SCHEDULED GENERAL ELECTION FOR FEDERAL 
OFFICE HELD IN NOVEMBER 2008 FOR CARRYING OUT A PROGRAM TO MAKE BACKUP 
 PAPER BALLOTS AVAILABLE IN THE CASE OF THE FAILURE OF A VOTING SYSTEM 
OR VOTING EQUIPMENT IN THE ELECTION OR SOME OTHER EMERGENCY SITUATION, 
                         AND FOR OTHER PURPOSES

                                _______
                                

  May 15, 2008.--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

                             MINORITY VIEWS

                        [To accompany H.R. 5803]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on House Administration, to whom was referred 
the bill (H.R. 5803) to direct the Election Assistance 
Commission to establish a program to make grants to 
participating States and units of local government which will 
administer the regularly scheduled general election for Federal 
office held in November 2008 for carrying out a program to make 
backup paper ballots available in the case of the failure of a 
voting system or voting equipment in the election or some other 
emergency situation, and for other purposes, having considered 
the same, report favorably thereon without amendment and 
recommend that the bill do pass.

             Emergency Paper Ballot Legislation (H.R. 5803)

                                 Report

                       PURPOSE OF THE LEGISLATION

    Introduced at the request of election advocates and elected 
officials, H.R. 5803 is intended to provide a simple solution 
to deal with some of the problems election officials may face 
on Election Day. H.R. 5803 provides reimbursement through 
grants to jurisdictions that choose to provide backup paper 
ballots in the event of voting machine failure or some other 
emergency situation during the November 2008 election.
    The language in the legislation has been crafted, at the 
request of the state and local officials, to allow them to 
decide what constitutes an `emergency situation.' This could 
mean anything from machine failure to long lines to problems 
with polling place staffing. It is entirely up to the 
jurisdiction to determine what circumstances justify the use of 
backup paper ballots and how to distribute them. H.R. 5803 also 
requires States and local jurisdiction to inform voters in 
certain circumstances that they could be voting on a backup 
paper ballot, but grants States and local jurisdictions the 
discretion to determine how and under what circumstances voters 
will be notified.
    H.R. 5803 has been drafted in full cooperation with the 
National Council of State Legislators and the National 
Association of County Officials, and with various individual 
Secretaries of State. They have submitted letters of support 
for H.R. 5803 and Ohio Secretary of State Jennifer Brunner has 
praised the bill as ``meaningful and respectful of state 
authority in election administration matters.'' In addition to 
the support of state and local governments, myriad election 
integrity groups including People for the American Way, the 
Brennan Center, the Lawyers Committee on Civil Rights, and 
Verified Vote also support H.R. 5803. As we have seen, broad 
support for election related legislation is not easy to 
accomplish. However, backup paper ballots are a unifying factor 
between election officials and election advocates.
    H.R. 5803 is 100% optional and the responsibility and 
mechanisms for implementation are left to the state and local 
officials. The Committee expects that local jurisdictions will 
act in full cooperation with the States to coordinate and 
implement their backup paper ballot program. H.R. 5803 is a 
measured and proactive step toward improving the system of 
election administration in November 2008. If the record turnout 
in the primaries is an indication of turnout in November, 
providing state and local jurisdictions the option to have 
backup paper ballots could mitigate any challenges they may 
face on Election Day. H.R. 5803 helps ensure election integrity 
and national electoral confidence and respects state and local 
jurisdictions' responsibility to administer elections.

             SECTION-BY-SECTION SUMMARY OF THE LEGISLATION

Section 1. Provides grants to States

    (a) Requires the Election Assistance Commission (EAC) to 
establish a grant program for States or units of local 
government to participate in if they enact a program to make 
backup paper ballots available in the case of the failure of a 
voting system, voting equipment, or some other emergency 
situation during the November 2008 Federal election.
    (b) Provides that for States or units of local government 
to be eligible, they must submit an application to the EAC that 
includes:
           a certification that the participant has 
        established a backup paper ballot program that meets 
        the requirements set forth in the bill;
           a statement of the reasonable costs expected 
        to be incurred when carrying out the program;
           an assurance that they will provide a 
        certification, no later than 60 days after the 
        election, of the costs actually incurred; and
           a certification that the participant will 
        repay the Commission any amount paid under this act 
        that exceeds the actual costs incurred.
    (c) Requires that, in the event of malfunctioning voting 
equipment at a polling place or some other emergency situation 
preventing the use of voting equipment, any voter who is 
waiting at the polling place and who would be delayed due to 
the malfunction or emergency situation shall be given a backup 
paper ballot pursuant to the following requirements:
           Individual voters must be provided 
        notification of their right to a backup paper ballot;
           Voters must be provided with a backup paper 
        ballot and instruction on and supplies necessary to 
        mark the ballot;
           Participant States and local units of 
        government must count every backup paper ballot as a 
        regular ballot and tabulate it on the date of the 
        election (unless the individual voter would have been 
        given a provisional ballot for other reasons);
           Participant States and local units of 
        governments must establish protocols for delivering and 
        supplying backup paper ballots to polling places and 
        for notifying voters of their right to use a backup 
        paper ballot.
    (d) Provides that the amount of the grant given to a 
participant should be equal to the amount of the reasonable 
costs incurred to carry out this program.

Section 2. States defined

    (a) Defines ``States'' to include the District of Columbia, 
Commonwealth of Puerto Rico, Guam, American Samoa, and the U.S. 
Virgin Islands.

Section 3. Authorization of appropriations

    (a) Authorizes $75 million for grants until this program 
until expended.

               COMMITTEE CONSIDERATION OF THE LEGISLATION

                       INTRODUCTION AND REFERRAL

    On April 15, 2008, Ms. Lofgren of California introduced the 
bill, which was referred to the Committee on House 
Administration.

                                HEARINGS

    On April 9, 2008, the Committee on House Administration 
held a hearing entitled ``2008 Presidential Primaries & 
Caucuses: What We've Learned So Far.'' The following Members 
were present at the hearing: Committee Chair Robert Brady, 
Reps. Zoe Lofgren, Charles Gonzalez, Vernon Ehlers, Daniel 
Lungren and Kevin McCarthy.

Witnesses

    Panel One:
          1. Mr. Tom Joyner
          2. Mr. Greg Moore, Director of NAACP National Voter 
        Fund
          3. Mr. John Bonifaz, Legal Director, Voter Action
          4. Ms. Cecilia Martinez, Executive Director, Reform 
        Institute
          5. Mr. Ken Smukler, President, InfoVoter Technologies
    Panel Two:
          1. Ms. April Pye, Interim Director, Fulton County 
        Department of Registration and Election, Georgia
          2. Ms. Alisha Alexander, Elections Administrator, 
        Prince George's County Board of Elections, Maryland
          3. Ms. Linda Weedon, Director, Maricopa County Board 
        of Elections, Arizona

                                 MARKUP

    On Wednesday, May 7, 2008, the Committee met to mark up 
H.R. 5803. The Committee favorably reported H.R. 5803 by a 
voice vote, a quorum being present.

             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 name of those voting for and against, to be printed in 
the committee report.

Amendments defeated by voice vote

    The Committee first defeated by voice vote Mr. Ehlers' 
Amendment #1, which would have restricted the funding provided 
for in H.R. 5803 only to develop and produce a template of an 
original backup paper ballot, but not to produce additional 
copies of the ballot.
    The Committee also defeated by voice vote Mr. Ehlers' 
Amendment #2, which would have restricted funding only to local 
jurisdictions and would have provided for grants to be 
disbursed based the voting age population of the participant 
local jurisdictions.
    The Committee defeated by voice vote Mr. Ehlers' Amendment 
#3, which would have given to the EAC Standards Board the 
responsibility of determining whether a State or local 
jurisdiction's costs in implementing its backup paper ballot 
program were reasonable.
    Finally, the Committee defeated by voice vote Mr. Lungren's 
Amendment #1, which would have prevented an individual or class 
of individuals from using the Act or any triggering event in 
the Act to create a private right of action.

Record votes on amendments to H.R. 5803

    The first recorded vote of the markup was on Mr. McCarthy's 
Amendment #1, which would have required a State to certify 
that, prior to voting an emergency ballot, a voter would be 
required to show either a photo identification or a copy of a 
current utility bill, bank statement, government check, 
paycheck or other government document that shows the name and 
address of the voter. The vote was 3-5 and the amendment was 
not agreed to.

------------------------------------------------------------------------
                  Member                      Ayes      Noes     Present
------------------------------------------------------------------------
Mr. Brady.................................  ........        X   ........
Ms. Lofgren...............................  ........        X   ........
Mr. Capuano...............................  ........        X   ........
Mr. Gonzalez..............................  ........        X   ........
Mrs. Davis (CA)...........................  ........  ........  ........
Mr. Davis (AL)............................  ........        X   ........
Mr. Ehlers................................        X   ........  ........
Mr. Lungren...............................        X   ........  ........
Mr. McCarthy..............................        X   ........  ........
                                           -----------------------------
    TOTAL.................................        3         5   ........
------------------------------------------------------------------------

    The Committee then voted on Mr. McCarthy's Amendment #2, 
which would have prevented the Election Assistance Commission 
from carrying out any action and H.R. 5803 from taking effect 
until the amount appropriated for grants pursuant to the bill 
equals the amount authorized to be appropriated. The vote was 
3-5 and the amendment was not agreed to.

------------------------------------------------------------------------
                  Member                      Ayes      Noes     Present
------------------------------------------------------------------------
Mr. Brady.................................  ........        X   ........
Ms. Lofgren...............................  ........        X   ........
Mr. Capuano...............................  ........        X   ........
Mr. Gonzalez..............................  ........        X   ........
Mrs. Davis (CA)...........................  ........  ........  ........
Mr. Davis (AL)............................  ........        X   ........
Mr. Ehlers................................        X   ........  ........
Mr. Lungren...............................        X   ........  ........
Mr. McCarthy..............................        X   ........  ........
                                           -----------------------------
    TOTAL.................................        3         5   ........
------------------------------------------------------------------------

    The Committee then voted to favorably report H.R. 5803 by a 
recorded vote of 5-3.

------------------------------------------------------------------------
                  Member                      Ayes      Noes     Present
------------------------------------------------------------------------
Mr. Brady.................................        X   ........  ........
Ms. Lofgren...............................        X   ........  ........
Mr. Capuano...............................        X   ........  ........
Mr. Gonzalez..............................        X   ........  ........
Mrs. Davis (CA)...........................  ........  ........  ........
Mr. Davis (AL)............................        X   ........  ........
Mr. Ehlers................................  ........        X   ........
Mr. Lungren...............................  ........        X   ........
Mr. McCarthy..............................  ........        X   ........
                                           -----------------------------
    TOTAL.................................        5         3   ........
------------------------------------------------------------------------

                      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 the Committee, based on the 
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.

                        CONSTITUTIONAL AUTHORITY

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

                         EARMARK IDENTIFICATION

    Pursuant to clause 9 of rule XXI, H.R. 5803 does not 
include any congressional earmarks, limited tax benefits, or 
limited tariff benefits as defined in clause 9(d), 9(e), or 
9(f) of rule XXI.

                        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. H.R. 5083 is intended to apply in all States and 
preempt laws to the contrary in their application to Federal 
elections.

               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:

H.R. 5803--A bill to direct the Election Assistance Commission to 
        establish a program to make grants to participating states and 
        units of local government which will administer the regularly 
        scheduled general election for federal office held in November 
        2008 for carrying out a program to make backup paper ballots 
        available in the case of a failure of a voting system or voting 
        equipment in the election or some other emergency situation, 
        and for other purposes

    Summary: H.R. 5803 amend current law to establish a grant 
program to be administered by the Election Assistance 
Commission (EAC). Under the legislation, the EAC would provide 
grants to states and local governments to purchase backup paper 
ballots to be used in the November 2008 elections. Those paper 
ballots would be available in the event an electronic voting 
system failed to operate properly. The legislation would 
authorize the appropriation of $75 million for the grant 
program. In addition, CBO estimates that the EAC would need $2 
million in fiscal year 2009 to administer the grant program.
    Assuming appropriation of the specified and estimated 
amounts, CBO estimates that implementing H.R. 5803 would cost 
$77 million in 2009. Enacting the bill would not affect direct 
spending or revenues. H.R. 5803 contains no intergovernmental 
or private-sector mandates as defined in the Unfunded Mandates 
Reform Act (UMRA) and would impose no costs on state, local, 
and tribal governments.
    Estimated cost to the Federal Government: For this 
estimate, CBO assumes that the legislation will be enacted near 
the start of fiscal year 2009 and that the authorized and 
estimated amounts will be appropriated that year. CBO estimates 
that implementing the bill would cost $77 million in fiscal 
year 2009. Outlays are estimated based on information from the 
EAC and historical spending patterns of similar grant programs. 
The estimated budgetary impact of H.R. 5803 is shown in the 
following table. The cost of this legislation falls within 
budget function 800 (general government).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2009     2010     2011     2012     2013
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Backup Paper Ballot Grants:
    Authorization Level............................................       75        0        0        0        0
    Estimated Outlays..............................................       75        0        0        0        0
Administrative Oversight:
    Estimated Authorization Level..................................        2        0        0        0        0
    Estimated Outlays..............................................        2        0        0        0        0
Total Proposed Changes:
    Estimated Authorization Level..................................       77        0        0        0        0
    Estimated Outlays..............................................       77        0        0        0        0
----------------------------------------------------------------------------------------------------------------

    Intergovernmental and private-sector impact: H.R. 5803 
contains no intergovernmental or private-sector mandates as 
defined in UMRA. The bill would benefit state, local, and 
tribal governments that receive grants.
    Estimate prepared by: Federal Costs: Matthew Pickford; 
Impact on State, Local, and Tribal Governments: Elizabeth Cove; 
Impact on the Private Sector: Paige Piper/Bach.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

  MINORITY VIEWS OF THE HONORABLE VERNON J. EHLERS, THE HONORABLE DAN 
               LUNGREN, AND THE HONORABLE KEVIN McCARTHY

    H.R. 5803--To direct the Election Assistance Commission to 
establish a program to make grants to participating States and 
units of local government which will administer the regularly 
scheduled general election for Federal office held in November 
2008 for carrying out a program to make backup paper ballots 
available in the case of the failure of a voting system or 
voting equipment in the election or some other emergency 
situation, and for other purposes.
    The Committee on House Administration ordered H.R. 5803 
reported favorably by a recorded vote of 5-3. H.R. 5803 
provides an optional grant program for states or jurisdictions 
to purchase backup paper ballots for any subjectively 
determined emergency situations that may occur during the 
upcoming general elections for Federal office. We are not 
opposed to grant programs, so long as there is necessity for, 
sufficient funding for and ample time to administer such 
programs. While well intended, there is no exigency that 
warrants the Federal government establishing an optional grant 
program that provides states with funding to produce back-up 
paper ballots for the November 2008 general elections. A vast 
majority of states already have contingency plans in place in 
the event of a voting machine or voting system malfunction or 
other emergency situation. It would be impolitic and careless 
to support an incentive program that is unnecessary and has 
little chance of receiving the full appropriation of authorized 
funds.

                        An Unnecessary Solution

    H.R. 5803 is an unnecessary and costly solution to a 
problem that does not exist. H.R. 5803 provides an optional 
grant program to states and local units of government for 
carrying out a program to make backup paper ballots available 
for the November 2008 general elections for Federal office. 
Under this scheme, election officials from participating states 
or local jurisdictions must advise voters of their right to 
request a paper ballot if they are at a polling location and 
would be delayed in casting a ballot due to voting machine 
failure, voting system failure or other emergency situation. 
Certainly, circumstances may arise on Election Day at any given 
polling location, which would delay a voter from casting a 
ballot in a timely manner. We recognize that a voter may have 
to wait in line longer if he or she arrives during peak voting 
hours or in the event a voting machine experiences technical 
problems and is inoperable for a period of time. We find it 
rather insulting to state and local election officials and city 
and county clerks, however, to assume that they do not have 
contingency plans in place to address these routine occurrences 
or emergency situations. In fact, a survey recently conducted 
by the Elections Center (National Association of Election 
Officials) indicates that virtually all of the states surveyed 
that use Direct-Recording Electronic (DRE) voting machines 
provide backup paper ballots in the event of machine failures; 
the very problem this bill proposes to solve.\1\ Further, 
testimony presented to the Committee revealed that the majority 
of election administration malfunctions are caused by human 
error.\2\
---------------------------------------------------------------------------
    \1\ Submission for the record, Committee on House Administration, 
U.S. House of Representatives, Committee Markup for H.R. 5803, May 7, 
2008.
    \2\ Testimony of Cecilia Martinez, Committee on House 
Administration, U.S. House of Representatives, Hearing on ``2008 
Presidential Primaries and Caucuses: What we've learned so far'', April 
9, 2008. Ms. Martinez also noted that 78% of all calls received for the 
2008 Presidential Primaries by the national MyVote1 hotline were from 
voters inquiring about poll locations and stressed the importance of 
increased voter education and poll worker training.
---------------------------------------------------------------------------
    Unfortunately, the Majority did not support the amendment 
offered by Mr. Ehlers that would limit the use of grants under 
this bill to the creation of a single copy of an original paper 
backup ballot per polling place, so that poll workers could 
photocopy additional ballots if needed. It is not the proper 
role of the Federal government to pay for pre-printing backup 
ballots. Furthermore, most states and local jurisdictions are 
required to store all voted and non-voted paper ballots 
produced for an election for 22 months; therefore it is 
fiscally and environmentally irresponsible for the Federal 
government to pay for the printing of paper ballots by states 
and localities that use other voting systems and which may 
never be used.
    Clearly, the impact of printing and storage when multiplied 
by states and jurisdictions across the country is considerable. 
Congress has the duty to spend taxpayers' money in a judicious 
manner. Rather than continuing to introduce redundant and 
costly election reforms that propose solutions to non-problems, 
we should focus our efforts and attention on areas of election 
administration that may need improvement.

                       Other Emergency Situation

    H.R. 5803 directs the Election Assistance Commission (EAC) 
to make grants to participating jurisdictions that develop a 
plan to make available backup paper ballots ``in the case of 
the failure of a voting system or voting equipment . . . or 
some other emergency situation.'' Unfortunately, the 
legislation does not define the term ``other emergency 
situation,'' and the bill's sponsor declined to provide any 
examples to illustrate her intent. We believe this shortcoming 
constitutes a major flaw in the program.
    The term ``other emergency situation'' is not defined in 
H.R. 5803, and the record is silent as to its intended meaning. 
However, section 1(a) uses the term ``other emergency 
situation'' to, in part, define the scope of the grant program 
(beyond the failure of a voting system or equipment); and 
section 1(b)(1)(A) provides that an applicant must certify to 
the EAC that it has established a program to make backup paper 
ballots available in the case of the failure of a voting system 
or equipment or some other emergency situation. In fact, it 
appears seven times in the five-page long text of H.R. 5803, as 
well as in the title. In addition to our objections to the 
program itself, we cannot support a grant program that is so 
ill-defined in its scope and requirements for participation. 
Without a definition of ``other emergency situation,'' how is 
the EAC expected to appropriately administer this program in 
accordance with Congressional intent, and how are states and 
local jurisdictions expected to know if their programs qualify? 
As a matter of common sense and good government, we believe it 
is irresponsible to support legislation that fails to define 
such a critical term.

                        Private Right of Action

    Regrettably, the Majority also did not accept an amendment 
offered by Mr. Lungren clarifying that H.R. 5803 does not 
establish a private right of action for any individual or any 
class of individuals. Although the amendment failed, the bill's 
sponsor acknowledged, during the colloquy, that H.R. 5803 does 
not under any circumstances create a private right of action. 
She maintains that the sole intent of H.R. 5803 is to reimburse 
states and local units of government for the costs associated 
with printing backup paper ballots to be provided to voters in 
the event they are waiting at their polling place and would be 
delayed due to voting machine failure, voting system failure or 
other emergency situation.

                               Conclusion

    While this optional grant program may appear attractive to 
some states and local jurisdictions, a change in the process of 
election administration could pose burdens or unintended 
consequences. It would not be prudent for the Federal 
government to establish a 75 million dollar grant program on 
behalf of the taxpayers with the general elections less than 
six months away. We must proceed with caution and use 
considered judgment when contemplating any changes to the 
Federal elections process.

                                   Vernon J. Ehlers.
                                   Kevin McCarthy.
                                   Daniel E. Lungren.
                               Appendix A

                          National Association of Counties,
                                       Washington, DC, May 6, 2008.
Re H.R. 5803.

Hon. Zoe Lofgren,
Chairwoman, House Subcommittee on Elections,
Washington, DC.
    Dear Representative Lofgren: On behalf of the National 
Association of Counties I write in support of H.R. 5803. We 
understand the legislation does not mandate but instead 
provides a voluntary opt-in grant program for states and 
counties that wish to provide for emergency paper ballots in 
the November, 2008 presidential election.
    NACo appreciates the voluntary nature of this legislation. 
It is important that states and counties have the flexibility 
of a voluntary program to determine if what has been proposed 
federally will actually work at the state and local level. The 
Help America Vote Act created a relationship between states and 
localities which needs to be maintained and fully funded.
    We understand that the bill provides that states certify to 
the Election Assistance Commission (EAC) any reasonable costs 
they expect to incur by participating in the emergency ballot 
grant program. We ask that report language clarify that the EAC 
may not unilaterally reject a state/county-certified reasonable 
cost.
    NACo thanks you for your leadership in introducing this 
legislation and appreciates the opportunity to work with you 
and your staff to craft a reasonable bill. Please direct any 
questions or comments to our Legislative Director, Edwin 
Rosado. Thank you for your support of America's counties.
            Sincerely,
                                              Eric Coleman,
                                                         President.
                                ------                                

                 National Conference of State Legislatures,
                                    Washington, DC, April 28, 2008.
Re H.R. 5803.

Hon. Zoe Lofgren,
Chairwoman, House Subcommittee on Elections,
Washington, DC.
    Dear Representative Lofgren: On behalf of the National 
Conference of State Legislatures (NCSL) I write in support of 
H.R. 5803, legislation that would provide a voluntary opt-in 
grant program for states that wish to provide for emergency 
paper ballots in the November, 2008 presidential election. NCSL 
greatly appreciates your and the Subcommittee's willingness to 
work with state officials on this legislation that is 
meaningful and respectful of state authority in election 
administration matters.
    NCSL further appreciates the voluntary nature of this 
legislation. It is important to states that they have the 
flexibility of a voluntary program to determine if what has 
been proposed federally will actually work at the state level. 
That being said, NCSL has two questions that I hope will be 
answered during the markup of this bill. First, because the 
bill provides for participation by both localities and states, 
is there a mechanism in the bill to provide that localities 
that decide to apply for funding notify their state of their 
intentions? The Help America Vote Act created a relationship 
between states and localities which needs to be maintained. 
NCSL asks that report language or an amendment be made that 
requires localities to notify their state if they are going to 
apply. Second, the bill provides that states certify to the 
Election Assistance Commission (EAC) any reasonable costs they 
expect to incur by participating in the emergency ballot grant 
program. Are these costs in any way reviewable by the EAC? NCSL 
would ask that report language clarify that the EAC may not 
unilaterally reject a state-certified reasonable cost.
    Again, NCSL thanks you for your leadership in introducing 
this legislation and appreciates the opportunity to work with 
you and your staff to craft a reasonable bill. Please direct 
any questions or comments to NCSL staff Susan Parnas Frederick. 
Thank you.
            Sincerely,
                                       Donna Stone,
                            State Representative, Delaware,
                                                   President, NCSL.
                                ------                                

                                Brennan Center for Justice,
                                      New York, NY, April 30, 2008.
Re support for H.R. 5803, the ``Back Up Paper Ballot Bill.''

Representative Zoe Lofgren,
Chair, Subcommittee on Elections, Committee on House Administration, 
        House of Representatives, Washington, DC.
    Dear Representative Lofgren: Thank you for your leadership 
and commitment to improving the security, reliability, and 
accessibility of our voting systems. In an election year that 
has garnered unprecedented voter interest, it is particularly 
important to have good policies and procedures in place in 
advance of the November elections.
    For this reason, we strongly support H.R. 5803, the Back Up 
Paper Ballot Bill. News reports of machine problems during 
states' recent presidential primary elections provide a preview 
of potentially widespread machine failure and 
disenfranchisement in November. H.R. 5803 would reimburse 
jurisdictions for costs associated with providing voters 
emergency paper ballots in the event of machine breakdowns.
    In elections past, machine failures have caused long lines 
at the polls and disenfranchised untold numbers of voters. 
Encouraging the use of emergency paper ballots will help ensure 
that every voter may have her vote counted and make it much 
less likely that voters will be forced to wait on long lines or 
turned away from the polls because of machine malfunction--
these are particularly important considerations for November's 
elections, when turnout is expected to be high.
            Sincerely,
                                           Lawrence Norden,
                                                           Counsel.
                                ------                                

                                              Common Cause,
                                       Washington, DC, May 6, 2008.
Hon. Robert A. Brady 
Chair, Committee on House Administration,
Washington, DC.
    Dear Representative Brady: I am writing to express the 
strong support of Common Cause for HR 5803 which would allow 
states to receive grants to make ``emergency back-up paper 
ballots'' available in the event of the failure of voting 
equipment.
    As you know, 32 states deploy voting systems which are 
electronic and need to ``boot up'' before a voter can cast a 
ballot. When these machines fail, and precincts aren't equipped 
with back up paper ballots, voters can be disenfranchised. 
Already in this election cycle we have seen voters turned away 
at the polls because machines couldn't be used. In Horry County 
South Carolina, during the Republican primary, 80% of the 
machines were not working at the opening of the polls, and 
precincts were not equipped with enough back-up paper ballots 
to accommodate voters. Under this legislation, each precinct 
could be stocked with back-up paper ballots, no voter would 
have to be turned away at the polls due to voting machine 
malfunction.
    This legislation is also critical because poll workers are 
often told to give voters provisional ballots if electronic 
machines fail to work. This practice is highly problematic as 
provisional ballots are counted differently than regular 
ballots. Confusion will be mitigated if voters are given 
emergency paper ballots which are designated as such. 
Provisional ballots should not be used in the event of machine 
failure.
    Thank you for turning your attention to this important 
issue and for your continued dedication to ensuring that every 
vote counts--and is counted as cast.
            Sincerely,
                                                 Bob Edgar,
                                                         President.
                                ------                                

             Lawyers' Committee for Civil Rights Under Law,
                                    Washington, DC, April 29, 2008.
Hon. Zoe Lofgren, 
Chair, Subcommittee on Elections,
Cannon House Office Building, Washington, DC.
    Dear Representative Lofgren: As the legal leader of 
Election Protection, the nation's largest non-partisan voter 
protection coalition, I write to thank you for introducing 
critical legislation to provide voters with backup paper 
ballots in the event that election machines fail. The bill is a 
measured, proactive step towards improving the system of 
election administration before this year's critical federal 
election.
    Election Protection is a year round, comprehensive voter 
protection effort providing support to coalition partners and 
voters alike in their efforts to cast a meaningful ballot. In 
addition to preparing for Election Day activities, the Lawyers' 
Committee works with local and state election officials, as 
well as in the halls of Congress, to facilitate election 
reform. In its role as the legal leader of the coalition, the 
Lawyers' Committee will recruit, train and deploy over 10,000 
attorneys and law students to participate in Election 
Protection efforts. Law firms host command centers on Election 
Day, and attorneys and other trained volunteers answer hotline 
calls from voters. The Lawyers' Committee creates, revises, and 
distributes legal manuals with current election law in all 
target states and coordinates comprehensive election 
administration activities conducted by Election Protection 
Legal Committees (EPLC), the coalition of local volunteers 
working with us throughout the country. When necessary, 
litigation may occur.
    In addition to helping our coalition partners and voters, 
since 2004, Election Protection has developed the most 
comprehensive picture of election administration from the 
perspective of the American voter. That experience has shown 
first hand scores of voters turned away because election 
machinery broke down without an adequate safeguard. Likewise, 
in places where there are procedures to administer emergency 
paper ballots in the wake of a machine failure or other 
emergency situation, poll workers had not been adequately 
trained to distribute the ballots to people waiting to cast a 
vote.
    As detailed in our report ``Election Protection 2008: 
Looking Ahead to November,'' we have seen these problems in 
Maryland, New York & Texas. The Potomac Primaries, held on 
February 12, 2008, provided examples of why this legislation is 
much needed. In Maryland near record turnout swamped poll 
workers and precincts throughout the state. The Election 
Protection hotline, 1-866-OUR-VOTE, which is administered by 
the Lawyers' Committee, received numerous reports of voting 
machines breaking down. Making the problem worse, many poll 
workers were not properly trained to hand out emergency 
ballots, causing voters to leave without casting a ballot.
    The Lawyers' Committee strongly supports Rep. Lofgren's 
initiative to direct the Election Assistance Commission to make 
grants available to states and local governments that implement 
a program to make backup paper ballots available in the case of 
the failure of a machine voting system or other emergency 
situation.
    The bill calls for poll workers to provide paper ballots to 
any individual who is waiting at the polling place on that date 
to cast a ballot in the election and who would be delayed due 
to a machine malfunction or other emergency situation.
    These ballots will be treated as regular ballots in lieu of 
the provisional status afforded to some paper ballots cast in 
accordance with federal law via the Help America Vote Act.
    Machine breakdowns, long lines and a shortage of poll 
workers have hampered effective election administration 
throughout the country. Rep. Lofgren's bill provides a 
proactive solution to an anticipated problem at the polls on 
November 4, 2008.
    The Lawyers' Committee for Civil Rights Under Law strongly 
encourages the passage of this bill. It is a proactive step in 
improving the administration of elections across the country.
            Sincerely,
                                          Jonah H. Goldman,
                    Director, National Campaign for Fair Elections, A 
                            Project of the Voting Rights Section of the 
                            Lawyers' Committee for Civil Rights Under 
                            Law.
                                ------                                

                               People For the American Way,
                                       Washington, DC, May 5, 2008.
Committee on House Administration, 
House of Representatives,
Washington, DC.
    Dear Committee Member: On behalf of the hundreds of 
thousands of members of People For the American Way, we write 
in support of H.R. 5803 to ensure the use of emergency paper 
ballots during voting equipment failures in the upcoming 
elections.
    Electoral reform is a priority for People For the American 
Way, and we welcome efforts to remedy the system's current 
flaws in order to increase voters' faith and participation in 
our democratic process. As a founder and leader in the non-
partisan Election Protection coalition with numerous allied 
organizations, including over 150 civil rights and voting 
rights organizations throughout the years, People For the 
American Way Foundation has helped document the major problems 
that voters across the country have had leading up to and on 
Election Day. These incidents include numerous reports of 
inadequate resources and poll worker training regarding 
emergency ballots.
    Emergency ballots are just that: ballots voters can cast in 
``emergencies'' (i.e.--when voting machines crash or are 
otherwise unavailable on Election Day). These ballots are meant 
as a back-up paper option when technology fails. But even 
emergency ballots are not failsafe, as some poll workers and 
election officials have been improperly treating emergency 
ballots and provisional ballots as one and the same. They fail 
to recognize, for example, that voters who are forced to cast 
paper ballots when systems fail are not the same as voters who 
are subject to after-the-fact investigations of their 
eligibility as required under the Help America Vote Act (HAVA). 
This poor training can lead to a delay in counting the ballots 
of otherwise eligible voters. H.R. 5803 makes it clear that 
emergency ballots and provisional ballots must be treated in 
separate manners and cannot be used interchangeably.
    Further, when mass problems require their usage and 
supplies are inadequate, the potential arises for polling 
places to run out of emergency ballots, causing voters to be 
left without the ability to cast a ballot. This problem is 
exacerbated by the increased voter turnout we have seen in the 
2008 primaries and expect to see this November. According to 
the Center for the Study of the American Electorate, on Super 
Tuesday 12 states saw record turnouts in their Democratic 
primaries and 11 in their Republican contests. The Chesapeake 
Primary (Maryland, Virginia, and Washington, DC) also saw 
exceptionally high turnout. Especially exciting are exit polls 
in many states that indicate that turnout increased 
exponentially among historically disenfranchised communities--
in some places over 50 percent. This increased voter turnout 
means that additional resources are needed at polling places in 
case of machine failure. H.R. 5803 would require, and allocate 
funding for, the adequate distribution of enough emergency 
ballots, taking into account the potential for increased voter 
turnout.
    People For the American Way is extremely encouraged that 
H.R. 5803 will help address many of the problems voters have 
consistently encountered by increasing resources and making 
emergency balloting procedures more uniform and clear for 
voters and poll workers. For these reasons and more, People For 
the American Way urges the Committee to support passage of H.R. 
5803.
            Sincerely,
                                           Kathryn Kolbert,
                                                         President.
                                         Tanya Clay House, 
                                           Director, Public Policy.
                                ------                                

                                        VerifiedVoting.org,
                                                       May 6, 2008.
Hon. Zoe Lofgren,
Cannon House Office Building,
Washington, DC.
    Dear Representative Lofgren: I write to you today to 
express VerifiedVoting.org's strong support of H.R. 5803, a 
bill to provide funding for backup paper ballots in the 
November 2008 elections. VerifiedVoting.org's focus is the 
verifiability, accessibility, and transparency of election 
equipment, and we are deeply thankful for your efforts to pass 
excellent verification legislation in the 110th Congress and in 
previous Congresses. A large percentage of our nation's voters 
cast ballots on electronic systems the accuracy of which cannot 
be independently verified. Recent elections have witnessed a 
number of elections marred by unreliable voting systems, as 
well as security reports documenting the possibility of even 
worse problems in the future.
    But there can be no verification of a voters' intent if 
that voter is turned away from the polls, or is forced to wait 
in a long line while missing work or while faced with family 
obligations. It is unlikely that any supplemental appropriation 
will be made in time for jurisdictions to convert from an 
unauditable voting system to a paper ballot voting system in 
time for the November elections. However, Congress must to 
everything in its power to ensure that voting equipment 
problems do not compromise the integrity of the 2008 elections, 
and H.R. 5803 takes necessary and sensible steps in this 
direction.
    As I write this afternoon, there are reports of long lines 
at voting centers in the Indiana Presidential primary, with 
frustrated voters leaving the polls.\1\ In last month's 
Pennsylvania Presidential primary, there were numerous reports 
of polling places at which all available machines were broken, 
and emergency paper ballots not being offered in a timely 
fashion.\2\ In South Carolina's Republican Presidential primary 
on January 19, thousands of voters were turned away from the 
polls when electronic voting machines failed to activate.\3\ 
Still others were forced to vote on crudely improvised slips of 
whatever paper was available.
---------------------------------------------------------------------------
    \1\ ``Richmond vote centers packed; computer glitch adds to wait.'' 
The Palladium-Item. May 6, 2008. Published on the Internet at: http://
www.pal-item.com/apps/pbcs.dll/article?AID=/20080506/UPDATES/80506015
    \2\ ``Machine, Registration Issues in Pa. Primary Election.'' 
Philadelphia Inquirer, April 22, 2008. Published on the Internet at: 
http://www.philly.com/philly/news/homepage/20080422--Few--problems--
in--Pa--primary--elections.html
    \3\ ``South Carolina Voting Machine Failure Underscores for Swift 
Federal Action for Voting Security.'' Statement by Common Cause, 
January 22, 2008. http://votetrustusa.org/index2.php?option=com--
content&do--pdf=1&id=2721
---------------------------------------------------------------------------
    Federal funding would provide counties and states the 
resources they need to supply all machine-based polling places 
with emergency paper ballots for use in case of equipment 
failure and/or other emergency situations, such as the long 
lines widely expected in this year of record-high voter 
turnout. Backup ballots can serve as insurance for 
Congressional elections in close districts in which machine 
malfunction could result in long lines, voters denied the 
opportunity to vote, or uncertainty about results. No voter 
should be disenfranchised by failing equipment, long lines, or 
other avoidable contingencies.
    Thank you for introducing H.R. 5803, and for leadership on 
the issue of verifiable voting. We look forward to continuing 
to work with you ensure the security, accuracy, auditability, 
and accessibility of America's federal elections.
            Respectfully,
                                            Warren Stewart,
                                          Senior Projects Director.
                                ------                                

                                   Ohio Secretary of State,
                                      Columbus, OH, April 29, 2008.
Re letter of support for H.R. 5803.

Hon. Zoe Lofgren,
Cannon House Office Building,
Washington, DC.
    Dear Congresswoman Lofgren: I write to extend my support 
for H.R. 5803, which would create a grant program for states to 
print and utilize backup paper ballots for the November 2008 
federal elections. In Ohio, we thoroughly tested the 
reliability and security of direct recording electronic (DRE) 
voting machines and found them susceptible to performance 
problems and security lapses. Until we can obtain funding to 
replace DRE voting systems in the 53 counties in Ohio that 
utilize DREs as their primary voting system, we have found that 
backup paper ballots:
           Ensure that voters have the option to vote a 
        paper ballot,
           Alleviate congestion due to long lines, and
           Serve as emergency ballots in the case of 
        machine or power failure.
    Ohio utilized backup paper ballots during the March 4, 2008 
primary election. In at least two specific instances, they 
proved to be vital when machines could not be used because they 
were programmed incorrectly and when sustained power outages 
exhausted the life of batteries in DRE voting machines. We plan 
to utilize backup paper ballots again in November with even 
greater specifics in their implementation and use. In short, we 
believe that in Ohio, backup paper ballots offer a transitional 
solution to a wholesale change of voting systems and provide a 
means to better ensure election integrity this November.
    Recently, I worked with Congressman Rush Holt on H.R. 5036, 
which included backup paper ballot provisions similar to those 
found in H.R. 5803. I supported his efforts concerning 
reimbursements to the states for backup paper ballots. 
Likewise, I support your advancement of H.R. 5803's grant 
program for backup paper ballots and offer any assistance I can 
provide toward passage of this worthwhile measure.
    In December 2007, my office released what is known as the 
``EVEREST Report,'' a massive voting machine study of the three 
voting systems used in Ohio: Premiere (formerly Diebold), ES&S, 
and Hart Intercivic. The EVEREST Report contained scientific 
and industrial findings that Ohio's voting systems (also used 
throughout the country), specifically DRE voting systems, lack 
basic security safeguards required and provided in other 
applications throughout the computer industry, are prone to 
deterioration in performance and software operation, and need 
reengineering and improved procedures for operation. In 
response, I issued a directive (Directive 2008-01) to all 
boards of elections on January 2, 2008, requiring all counties 
utilizing DRE voting machines as their primary system of voting 
to print backup paper ballots in the amount of at least 10% of 
the number of voters who voted in a similar, previous election.
    The directive permitted any voter who preferred a paper 
ballot to vote by paper ballot and for such paper ballots to be 
counted on election night as part of the unofficial count. 
Until Ohio has secured funding to move its counties utilizing 
DRE voting technology to optical scan paper ballot technology, 
backup paper ballots provide needed security and reliability to 
ensure that disenfranchisement does not occur and to provide 
for greater integrity in post-election audit procedures.
    My office has ordered our 53 county boards of elections 
that utilize DREs as their primary voting system to provide the 
Ohio Secretary of State's office with the costs of implementing 
the backup paper ballot directive, and once we have obtained 
these numbers, I will be happy to share them with you. I can 
tell you, initially, the costs for even the largest counties 
were in the low 5 figures, and for most, they were in the low 4 
figures. From initial figures provided, it appears that your 
proposal would be a cost effective means to ensure election 
confidence, especially since the November 2008 election will be 
the first presidential election where DRE use will be 
widespread.
    I appreciate the opportunity to communicate my support for 
H.R. 5803. Restoring and ensuring confidence in Ohio elections 
is an essential goal of my administration. Our state has made 
great strides in this respect, and we will continue to work 
toward this end, especially for November's election, when Ohio 
again is likely to be a pivotal state in the presidential 
contest. H.R. 5803 would provide Ohio, along with many other 
states, a simple but important tool to ensure election 
integrity and increase national electoral confidence. Please 
feel free to contact me if I can provide you with additional 
information or support.
            Sincerely,
                                                  Jennifer Brunner.

                                  
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