U.S. Commission on Civil Rights

Election Reform: An Analysis of Proposals and the Commission's Recommendations for Improving America's Election System

Chapter II

Federal Legislation Addressing Election Reform

The authority Congress possesses in the administration of federal elections is relevant to a comprehensive review of election reform. According to one scholar,

Congress has broad authority under the Constitution to regulate the manner of House and Senate elections, to protect the right of citizens to vote, and to initiate amendments to the Constitution altering the method by which presidents are selected . . .[1]

More specifically, although states have responsibility for administering federal elections, Congress has the authority to legislate in this area as set forth in the Constitution. Congress power in congressional elections principally derives from Article I, Section 4, Clause 1, of the Constitution. This section, known as the Elections Clause, grants Congress the authority to make or alter the regulations established by states regarding the administration of federal elections, but Congress may not alter state-established polling sites for the election of senators.[2]

For presidential elections, Congress authority is more limited. As set forth in Article II, Section I, Clause 4, of the Constitution, Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. [3] However, statutory provisions giving Congress greater authority in presidential elections have been upheld by the Supreme Court and federal appellate courts. Still, such legislation has been fairly limited and, consequently, so has case law in this area.[4]

Congress is also able to affect the way states run elections through the appropriation of federal funds. In exercising its spending power, Congress may encourage State action by attaching certain conditions to the receipt of federal funds. Congress authority to do this has been upheld by the Supreme Court, although with certain restrictions. Among these are that any requirements be in pursuit of the general welfare of the population and that states be made fully aware of any requirements before given a grant.[5]

Clearly, Congress has some authority to regulate the administration of federal elections. However, the extent to which this is advisable, or feasible, has yet to be clearly established. In fact, some scholars have argued against the creation of a federal election system because of the limitations of the existing U.S. federal system.[6]

PROPOSED LEGISLATION: S. 565, S. 953, AND H.R. 1170

Congressional authority to regulate elections has been tested and debated in recent months. In the wake of the 2000 election, there have been many legislative proposals at the national level to reform and indeed repair the election system in the United States. Central to each proposal is the balance between federal involvement and state responsibility, although how these are exercised varies from one bill to the next. The following discussion will compare two major proposals, S. 565 sponsored by Christopher Dodd (D-CT)[7] (its companion bill in the House is H.R. 1170)[8] and S. 953 sponsored by Charles Schumer (D-NY) and Mitch McConnell (R-KY).[9]

S. 565 lists 10 congressional findings addressing the federal role in guaranteeing the right to vote. Among these findings are (1) the right to vote is a fundamental and incontrovertible right under the Constitution, (2) there is a need for Congress to encourage and enable every eligible American to vote by reaffirming that the right to vote is a fundamental right under the Constitution, (3) there is a need for Congress to encourage and enable every eligible American to vote by reaffirming that the United States is a democratic government of the people, by the people, and for the people where every vote counts, and (4) there is a need to counter discrimination in voting by removing barriers to the exercise of the constitutionally protected right to vote. [10]

A similar bill introduced in the House of Representatives, H.R. 1170, sponsored by John Conyers (D-MI), lists 13 congressional findings also addressing the federal role in guaranteeing the right to vote. Among these findings are (1) the right to vote is fundamental and incontrovertible under the Constitution, (2) the United States Supreme Court held in Bush v. Gore that a lack of uniform and nondiscriminatory standards with respect to presidential elections violates the Equal Protection Clause of the 14th Amendment to the Constitution of the United States, (3) there is overwhelming evidence that disparate procedures and antiquated machinery are potentially resulting in the disenfranchisement of millions of voters, (4) there is overwhelming evidence that disparate procedures and antiquated machinery have a disproportionate racial impact, and (5) Congress should counter discrimination in voting by removing barriers to the exercise of the constitutionally protected right to vote. [11]

S. 953 offers no findings.[12]

Temporary Organization to Review the Election Process

Membership

S. 565 establishes a Commission on Voting Rights and Procedures (Voting Rights Commission) consisting of 12 members of whom six are appointed by the President; three are appointed by the minority leader of the Senate unless the minority leader is of the same political party as the President, in which case they are appointed by the majority leader of the Senate; and three are appointed by the minority leader of the House of Representatives unless the minority leader of the House is of the same political party as the President, in which case they are appointed by the majority leader of the House.[13]

S. 953 establishes a Blue Ribbon Study Panel (Panel) also consisting of 12 members of whom three are appointed by the majority leader of the Senate, three are appointed by the minority leader of the Senate, three are appointed by the speaker of the House of Representatives, and three are appointed by the minority leader of the House. Unlike S. 565, S. 953 requires that the Panel be balanced. The Panel, to the maximum extent possible, is to encompass the numerous views on the matters it will study, as well as a 're gional and geographic balance among its members.[14]

Duties

S. 565: The duties of the Voting Rights Commission encompass the thorough study of:

• voting technology and systems;

• design of ballots and the uniformity of ballots;

• access to ballots and polling places (e.g., early notification of voting localities and access for voters with disabilities, visual impairments, and limited English proficiency);

• how the limitations of voting systems affect the efficiency of election administration;

• voter registration and maintenance of voter rolls;

• alternative voting methods;

• voter intimidation, both real and perceived;

• accuracy of voting, election procedures, and voting equipment;

• voter education;

• election personnel and volunteer training;

• implementation of Title I of the Uniformed and Overseas Citizens Absentee Voting Act;

• the feasibility and advisability of establishing the date of federal elections as a federal or state holiday;

• the feasibility and advisability of establishing modified polling place hours; and

• how permanent federal assistance can best be provided to state and local authorities to improve the administration of elections for federal office.[15]

S. 953: The duties of the Panel encompass a thorough study of:

• current and alternate methods and mechanisms of voting and counting votes in elections for federal office;

• existing ballot designs for federal elections;

• existing methods of voter registration, including the maintenance of secure and accurate lists of registered voters and ensuring the appearance of registered voters on the polling list at the appropriate polling site;

• existing methods of conducting provisional voting, including notification of ballot disposition to the voter;

• existing methods of ensuring accessibility to voting, registration, polling places, and voting equipment to all voters (e.g., blind, disabled, and limited-English-proficient voters);

• existing methods of voter registration for members of the military and overseas voters, including the timely delivery, handling, and counting of their ballots;

• existing methods of recruiting and improving the performance of poll workers;

• federal and state laws governing the eligibility of persons to vote;

• existing voter education methods regarding the process of registering to vote and voting, operating voting systems, locating polling places, and all other areas of voter participation in elections;

• critical points in voting and the administration of elections in rural and urban areas;

• holding elections for federal office on different days, places, and hours as well as the advisability of establishing a uniform poll closing time; and

• how best the federal government can assist state and local authorities in improving the administration of elections for federal office and the level of funding required for this.[16]

Under H.R. 1170, the duties of the Voting Rights Commission are exactly like those of S. 565 except for very minor differences primarily found in the order and phrasing of topics.

Recommendations to be Addressed

S. 565: The Voting Rights Commission's recommendations are to address:

• best practices in voting and election administration regarding the areas of study presented above and identifying those methods of voting and administering elections that would be convenient, accessible, nondiscriminatory, and easy to use for voters in election for federal office; yield the broadest participants; and produce accurate results;

• the permanent federal assistance to state and local authorities toward improving the administration of elections for federal office;

• voter participation in federal elections regarding methods to increase voter registration; increased accuracy of voter rolls and participation and inclusion of legal voters; improved voter education; and improved training of election personnel and volunteers; and

• consistency with election technology and administration requirements.[17]

S. 953: The Panel's recommendations are to address:

• which methods in voting and election administration are most convenient, accessible, and easy to use for all voters; provide the most accurate, secure, and expeditious voting system and election results; do not discriminate and provide equal opportunity to all voters; and are most efficient and cost-effective; and

• the most effective method of providing federal assistance to state and local authorities in order to improve the administration of elections and the levels of funding required for this.[18]

Reports

S. 565: The Voting Rights Commission is to issue as many interim reports, no later than the date of the final report, as the majority of its members deem necessary. The final report, having been approved by the majority of the Voting Rights Commission's members, is due no later than one year after enactment of this act and is to be submitted to the President and Congress. Included in the report is a detailed statement of the Voting Rights Commission's findings and conclusions, recommendations approved by the majority of the commission, and any dissenting or minority opinions.[19]

S. 953: An interim report is to be issued by the Panel, if deemed necessary, prior to the final report and with enough time to permit full or partial implementation prior to the federal elections of 2002. The final report of the Panel is due no later than six months after all the members have been appointed. Included in this report must be a detailed statement of the issues and any dissenting or minority opinions.[20]

Powers

S. 565: The Voting Rights Commission has the power to hold hearings, issue and enforce subpoenas, have allowances and fees for witnesses, request information from federal agencies, use the postal service as other federal departments and agencies, request administrative support services from the General Services Administration, and accept, use, and dispose of gifts in order to perform its duties. Furthermore, the Voting Rights Commission is subject to the requirements of the Federal Advisory Committee.[21]

S. 953: The Panel has the power to hold hearings, including the administration of oaths and affirmations, which are open to the general public, to approve actions by a majority vote, request information from federal agencies, establish a Web site, use the postal service as other federal agencies and departments, request administrative support services from the General Services Administration, and contract and reimburse persons and federal agencies for supplies and services.[22]

Termination

S. 565: The Voting Rights Commission shall terminate 45 days after submitting its final report.[23]

S. 953: The Panel shall terminate 30 days after submitting its final report.[24]

Permanent Organization to Oversee the Election Process

Membership

S. 953 establishes the Election Administration Commission (EAC) consisting of eight members appointed by the President through the approval and with the advice and consent of the Senate. More specifically, the majority and minority leaders of the Senate, the speaker of the House, and the minority leader of the House will each recommend a candidate to the President with respect to each vacancy on the Commission affiliated with the political party of the officer involved.

The length of appointments varies initially with four of the original members serving for five years and the remaining four for four years. In both instances, not more than two members of each group may be affiliated with the same political party.

Duties

The duties of the EAC include:

• adopting or modifying any recommendation developed by the Panel, including updating the recommendations adopted or modified once every four years;

• issuing or adopting updated voting system standards, including updating such standards at least every four years. This is to be done no later than six months after the enactment of this act;

• advising states on their compliance with federal laws regarding accessibility of registration and polling places for people with disabilities;

• having primary responsibility for carrying out federal functions of the Uniformed and Overseas Citizens Absentee Voting Act;

• assembling and distributing information related to federal, state, and local elections;

• carrying out provisions of Section 9 of the National Voter Registration Act of 1993;

• making information on the federal election system available to the public and the media;

• assembling and making available bipartisan panels of elections professionals to state election officials, upon request, for the review of election or vote counting procedures in federal, state, and local elections;

• compiling and making available to the public official certified results of federal elections and statistics on national voter registration and turnout; and

• administering the Federal Election Reform Grant Program established by this act.[25]

S. 565 does not establish a permanent organization to oversee the federal election process.[26]

Grant Program

Establishment and Administration of Grant of Program

S. 565 establishes a grant program to be administered by the attorney general through the assistant attorney general for the Office of Justice Programs and the assistant attorney general for civil rights in consultation with the Federal Election Commission.[27]

S. 953 establishes a grant program to be administered by the EAC.[28]

Eligibility and Authorized Activities

States and localities are eligible to apply for grants under S. 565, which may be used for improving, acquiring, or replacing voting equipment; increasing accessibility to voting places; implementing new election administration procedures to increase voter participation; educating voters; and implementing the recommendations contained in the final report of the Voting Rights Commission.[29]

Under S. 953 states and localities are also eligible to apply for grants, which may be used to implement recommendations adopted or modified by the EAC and to meet certification requirements established by this act.[30]

Requirements for Grant Applicants

Among the requirements that grant applicants must meet to receive funds under the regulations established in S. 565 are:

States    

• uniform nondiscriminatory voting standards;

• accuracy of voter registration lists; and

• voter education and poll worker training programs.

Localities

• to be submitted under the state plan and cannot be inconsistent with that plan.[31]

Among the requirements that grant applicants must meet to receive funds from the EAC as established in S. 953 are:

• compliance with the Voting Rights Act of 1965, the Motor Voter Law, and the Voting Accessibility for the Elderly and Handicapped Act;

• prior implementation of a system ensuring accuracy of registration lists; and

• voter education and poll worker training programs.[32]

Preference for Fund Dispersal/Grant Approval

S. 953 gives preference to states and localities that have the greatest need in terms of deficient voting systems, election administration, and assistance required to implement the recommendations adopted by the EAC.[33]

S. 565 does not give preference.[34]

Amount of Federal Funds

S. 565 authorizes 80 percent in federal matching funds for each state and locality, although this may be increased by the attorney general, and applications submitted before March 1, 2001, will have the federal share increased to 90 percent.[35]

S. 953 authorizes the EAC to provide funds that do not exceed 75 percent of costs. However, this may be increased if the EAC determines that the state or locality does not have adequate resources to meet election costs with a 75 percent federal share.[36]

Oversight of Grant Recipients

S. 565 provides for the auditing and examination of grant recipients.[37]

S. 953 requires that grant recipients report to the EAC within six months of receiving a grant and provides for audits of recipients.[38]

Accountability to Congress

S. 565 establishes that the attorney general will report to Congress, no later than January 31, 2003, regarding any activities funded by a grant awarded under this title and any recommendation for legislative or administrative action that the Attorney General considers appropriate. [39]

S. 953 establishes that within one year of the first payment to a grant recipient, EAC will report to Congress and that it do so annually thereafter.[40]

Funding Authorization

S. 565 authorizes such sums as may be necessary for fiscal years 2002 through 2006.[41]

S. 953 authorizes $500 million for fiscal years 2002 through 2006.[42]

Advisory Boards

S. 953 establishes an advisory board consisting of 24 members of whom 12 are appointed by the chairperson of the EAC and 12 by the vice chairperson of the EAC. The advisory board is to assist the members of the EAC with matters relating to the administration of election when requested to do so. The board is established indefinitely.[43]

S. 565 does not establish an advisory board.[44]

Mandatory Election Requirements Independent of Grants

S. 565 establishes the following mandatory requirements for federal elections independent of grants:

• Vote verification/error notification for both overvotes and undervotes; audit capacity for each ballot cast; accessibility to individuals with disabilities and provision of the same opportunity for privacy and independence for those voters as for non-disabled voters; provision of alternative language accessibility for limited-English-proficient voters; and an error rate no greater than the error rate established by Federal Election Commission as of the date of enactment of the act.

• Provisional voting: if the name of an individual who declares to be a registrant eligible to vote at a polling place in an election for federal office does not appear on the official list of registrants eligible to vote at the polling place, among other requirements, that individual should be notified that he or she can cast a provisional ballot in the election or the individual will be permitted to cast a vote at that polling place upon written affirmation by the individual before an election official at that polling place.

• Sample ballot requirement: the appropriate election official shall mail to each registered voter a sample ballot that will be used for the election. There should be information regarding the date of the election and the hours polling places will be open. Instructions on how to cast a vote on the ballot, general information on voting rights under federal and state laws, and instruction on how to contact the appropriate officials if these rights are alleged to be violated should be also be included. The mailed sample ballot, which would be used for an election for federal office, would also be published in a newspaper of general circulation in the applicable geographic area not later than 10 days prior to the date of the election, and would be posted publicly at each polling place on the date of election.

The attorney general has civil rights enforcement authority through the Department of Justice's Civil Rights Division.

S. 953 does not mandate requirements independent of grants.[45]

DISTINCT ISSUES ADDRESSED BY H.R. 1170

Voting Rights

H.R. 1170 proposes requirements for the equal protection of voting rights by seeking to amend Part E of Title I of Public Law 90-351 (42 U.S.C. 3750 et seq.) by adding a new subpart at the end. This proposed addition is Subpart 4 Requirements For Equal Protection of Voting Rights, which is divided into Chapter A Voting Rights in Federal Elections, Chapter B Voting Rights In State and Local Elections, and Chapter C Definitions. Chapter A addresses such matters as requirements for protecting voting rights (Section 531), requiring states to meet requirements (Section 532), and reimbursement for costs of meeting requirements (Section 533) as related to federal elections. Chapter B addresses these same issues, except for Section 532, as related to state and local elections (Sections 541 and 542, respectively). Issues discussed in these sections include, for example, voting systems, provisional voting, sample ballots (Sections 531 and 541, respectively), and regulations for state reimbursement and authorization of appropriations (Sections 533 and 542, respectively). Finally, Chapter C defines the terms election and state as understood and identified in this bill.[46]

Early Bird and Good Citizen Grant Program

Part E of Title I of Public Law 90-351 (42 U.S.C. 3750 et seq.) is further amended by H.R. 1170 through the addition of Subpart 5 Early Bird and Good Citizen Grant Program, which contains Section 571 through Section 581. The purpose of Subpart 5 is to provide equal protection of voting rights through the establishment of a grant program. The issues discussed include such matters as (1) the authority and responsibility of the attorney general, the assistant attorney general for the Office of Justice Programs, and the assistant attorney general for the Civil Rights Division in the administration of this grant program; (2) the authorized use of grant payments by a state or locality, including such things as the improvement, acquisition, and replacement of voting equipment or technology and the improvement of polling place accessibility for people with physical disabilities; (3) the establishment of general policies and criteria for the approval of grant applications and requirements to be met by state plans. These criteria include uniform and nondiscriminatory standards for the equal protection of voting rights and the maintenance of accurate voter rolls to prevent the removal of legal voters ; (4) the audit and examination of state and localities, including a requirement that grant recipients maintain such records as prescribed by the attorney general and the assistant attorney general for civil rights; and (5) the establishment that programs and activities receiving full or partial financial assistance under this subpart are considered to be receiving federal financial assistance and therefore must adhere to such federal legislation as Title VI of the Civil Rights Act of 1964.[47]

Antitrust Exemption

H.R. 1170 proposes that the sharing of any information, research, or data relating to the development or sale of voting systems and related products with the purpose of promoting the compliance of voting systems with the requirements set forth in this bill, shall not violate antitrust laws. However, this shall not be the case for any activity which results in price fixing or the boycott of any person. [48]

HOYER-NEY PROPOSAL

As this report was being prepared, the chairman and ranking member on the House Administration Committee, Representatives Bob Ney (R-OH) and Steny Hoyer (D-MD), were reportedly working on language for a proposal that would establish minimum standards for state and local election administration. The proposal is expected to contain requirements for statewide voter registration, revotes if a voter spoils a ballot, and provisional ballots when registration status is in question. The proposal also will seek $2.5 billion to help purchase new equipment and train personnel. A four-member commission would take over responsibilities currently carried by the Federal Election Commission's Office of Election Administration and the Pentagon (for military voting).[49]