[House Report 109-8]
[From the U.S. Government Publishing Office]
109th Congress Rept. 109-8
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
CONTINUITY IN REPRESENTATION ACT OF 2005
_______
February 24, 2005.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Ney, from the Committee on House Administration, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 841]
[Including cost estimate of the Congressional Budget Office]
The Committee on House Administration, to whom was referred
the bill (H.R. 841) to require States to hold special elections
to fill vacancies in the House of Representatives not later
than 45 days after the vacancy is announced by the Speaker of
the House of Representatives in extraordinary circumstances,
and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Continuity in Representation Act of
2005''.
SEC. 2. REQUIRING SPECLAL ELECTIONS TO BE HELD TO FILL VACANCIES IN
HOUSE IN EXTRAORDINARY CIRCUMSTANCES.
Section 26 of the Revised Statutes of the United States (2 U.S.C.
8) is amended--
(1) by striking ``The time'' and inserting ``(a) In
General.--Except as provided in subsection (b), the time''; and
(2) by adding at the end the following new subsection:
``(b) Special Rules in Extraordinary Circumstances.--
``(1) In general.--In extraordinary circumstances, the
executive authority of any State in which a vacancy exists in
its representation in the House of Representatives shall issue
a writ of election to fill such vacancy by special election.
``(2) Timing of special election.--A special election held
under this subsection to fill a vacancy shall take place not
later than 45 days after the Speaker of the House of
Representatives announces that the vacancy exists, unless,
during the 75-day period which begins on the date of the
announcement of the vacancy--
``(A) a regularly scheduled general election for the
office involved is to be held; or
``(B) another special election for the office
involved is to be held, pursuant to a writ for a
special election issued by the chief executive of the
State prior to the date of the announcement of the
vacancy.
``(3) Nominations by parties.--If a special election is to be
held under this subsection, the determination of the candidates
who will run in such election shall be made--
``(A) by nominations made not later than 10 days
after the Speaker announces that the vacancy exists by
the political parties of the State that are authorized
by State law to nominate candidates for the election;
or
``(B) by any other method the State considers
appropriate, including holding primary elections, that
will ensure that the State will hold the special
election within the deadline required under paragraph
(2).
``(4) Extraordinary circumstances.--
``(A) In general.--In this subsection, `extraordinary
circumstances' occur when the Speaker of the House of
Representatives announces that vacancies in the
representation from the States in the House exceed 100.
``(B) Judicial review.--If any action is brought for
declaratory or injunctive relief to challenge an
announcement made under subparagraph (A) the following
rules shall apply:
``(i) Not later than 2 days after the
announcement, the action shall be filed in the
United States District Court having
jurisdiction in the district of the Member of
the House of Representatives whose seat has
been announced to be vacant and shall be heard
by a 3-judge court convened pursuant to section
2284 of title 28, United States Code.
``(ii) A copy of the complaint shall be
delivered promptly to the Clerk of the House of
Representatives.
``(iii) A final decision in the action shall
be made within 3 days of the filing of such
action and shall not be reviewable.
``(iv) The executive authority of the State
that contains the district of the Member of the
House of Representatives whose seat has been
announced to be vacant shall have the right to
intervene either in support of or opposition to
the position of a party to the case regarding
the announcement of such vacancy.
``(5) Protecting ability of absent military and overseas
voters to participate in special elections.--
``(A) Deadline for transmittal of absentee ballots.--
In conducting a special election held under this
subsection to fill a vacancy in its representation, the
State shall ensure to the greatest extent practicable
(including through the use of electronic means) that
absentee ballots for the election are transmitted to
absent uniformed services voters and overseas voters
(as such terms are defined in the Uniformed and
Overseas Citizens Absentee Voting Act) not later than
15 days after the Speaker of the House of
Representatives announces that the vacancy exists.
``(B) Period for ballot transit time.--
Notwithstanding the deadlines referred to in paragraphs
(2) and (3), in the case of an individual who is an
absent uniformed services voter or an overseas voter
(as such terms are defined in the Uniformed and
Overseas Citizens Absentee Voting Act), a State shall
accept and process any otherwise valid ballot or other
election material from the voter so long as the ballot
or other material is received by the appropriate State
election official not later than 45 days after the
State transmits the ballot or other material to the
voter.
``(6) Application to district of columbia and territories.--
This subsection shall apply--
``(A) to a Delegate or Resident Commissioner to the
Congress in the same manner as it applies to a Member
of the House of Representatives; and
``(B) to the District of Columbia, the Commonwealth
of Puerto Rico, American Samoa, Guam, and the United
States Virgin Islands in the same manner as it applies
to a State, except that a vacancy in the representation
from any such jurisdiction in the House shall not be
taken into account by the Speaker in determining
whether vacancies in the representation from the States
in the House exceed 100 for purposes of paragraph
(4)(A).
``(7) Rule of construction regarding federal election laws.--
Nothing in this subsection may be construed to affect the
application to special elections under this subsection of any
Federal law governing the administration of elections for
Federal office (including any law providing for the enforcement
of any such law), including, but not limited to, the following:
``(A) The Voting Rights Act of 1965 (42 U.S.C. 1973
et seq.), as amended.
``(B) The Voting Accessibility for the Elderly and
Handicapped Act (42 U.S.C. 1973ee et seq.), as amended.
``(C) The Uniformed and Overseas Citizens Absentee
Voting Act (42 U.S.C. 1973ff et seq.), as amended.
``(D) The National Voter Registration Act of 1993 (42
U.S.C. 1973gg et seq.), as amended.
``(E) The Americans With Disabilities Act of 1990 (42
U.S.C. 12101 et seq.), as amended.
``(F) The Rehabilitation Act of 1973 (29 U.S.C. 701
et seq.), as amended.
``(G) The Help America Vote Act of 2002 (42 U.S.C.
15301 et seq.), as amended.''.
Purpose of the Legislation
H.R. 841, the Continuity in Representation Act of 2005,
establishes a framework for conducting expedited special
elections to fill House vacancies resulting from a catastrophic
terrorist attack or other extraordinary circumstances. The
purpose of H.R. 841 is to ensure that a functioning House of
Representatives would be in place with the ability to operate
effectively and with legitimacy in the wake of a potential
catastrophic terrorist attack.
Ever since the terrible and fateful morning of September
11, 2001, the American people have become painfully aware of
the destructive intent of our country's terrorist enemies as
well as the increasingly sophisticated and devastating methods
by which they carry out their deadly work. The possibility that
terrorists could detonate a nuclear, chemical, or biological
weapon of mass destruction in our Nation's capital--
annihilating major portions of our federal government and
potentially killing dozens or hundreds of Members of Congress--
is one that we cannot ignore.
If such an attack were ever to occur, the presence of
strong national leadership would be more important than ever.
The American people would be desperately seeking reassurance
that their government remained intact and retained the
capability of acting vigorously in the nation's defense.
Therefore, it would be essential that a functioning Congress be
in place with the ability to operate with legitimacy as soon as
possible.
Any potential solution to this issue must take into account
the fundamental role the House plays in our constitutional
structure. When drafting the federal Constitution, our Founding
Fathers designed the House to be the branch of government
closest to the people. They believed the only way this
objective could be accomplished was through frequent elections.
Consequently, the Constitution--in Article I, Section 2, Clause
4--provides that vacancies in the House may be filled only
through special elections. As a result, no Member has ever
served in this House who was not first elected by the people he
or she represents.
H.R. 841 presents a balanced and measured solution to this
most complex and difficult matter. The Continuity in
Representation Act of 2005 would ensure the continuing
operation of the House during times of national crisis, while
at the same time preserving the character of the House as an
elected body. For this the reason, the Committee seeks to move
the process forward by favorably reporting this important
legislation.
Summary of the Legislation
H.R. 841, as introduced, is identical to H.R. 2844, the
Continuity in Representation Act of 2004, which passed in the
House last year by an overwhelming vote of 306-97. During the
mark-up, Chairman Ney introduced an amendment in the nature of
a substitute that maintains the structure and details of the
introduced bill but contains a number of modifications to
accommodate concerns raised by the minority and the states.
H.R. 841, as amended, provides for expedited special
elections to be held in ``extraordinary circumstances.''
Specifically, this legislation requires that within 45 days of
the Speaker of the House of Representatives announcing that
more than 100 vacancies exist in the membership of the House,
the executive authority of a State in which a House vacancy
exists shall hold a special election to fill such vacancy. The
majority opinion of state election officials appears to be that
45 days would provide sufficient time to plan and prepare for
an expedited special election.
Under H.R. 841, as amended, the candidates running in
expedited special elections would be selected either by
political parties authorized by state law to nominate
candidates--which would have up to 10 days following the
Speaker's announcement to nominate a candidate to run in the
special election--or by other methods the state deems
appropriate, including holding special elections, provided the
state is otherwise able to meet the 45-day deadline for
conducting the special elections. Thus, the states are given
greater flexibility regarding the procedures by which
candidates would be selected for expedited special elections.
H.R. 841, as amended, also provides that if a state is
scheduled to hold a regularly scheduled general election or a
previously scheduled special election within 75 days of the
Speaker's announcement of more than 100 vacancies, that state
would not be required to schedule an expedited special
election, thus in essence, affording a 30-day extension to such
states. H.R. 841, as introduced, granted the 30-day extension
only to states whose general election machinery was already in
motion. H.R. 841, as amended, permits states that have
scheduled special elections prior to the Speaker's announcement
to avail themselves of this extension as well.
H.R. 841, as amended, also protects the ability of military
personnel and overseas citizens to fully participate in
expedited special election by instructing that absentee ballots
be transmitted to such voters within 15 days of the Speaker's
announcement and requiring that such absentee ballots be
counted if received not later than 45 days after the state
transmits them. In addition, the amendment clarifies that its
expedited special election procedures are equally applicable to
the representatives of the District of Columbia and the U.S.
territories. Furthermore, H.R. 841, as amended, reiterates that
federal voting and election laws would remain in effect for any
expedited special elections.
Any legal action challenging the announcement of more than
100 vacancies made by the Speaker would have to be filed within
two (2) days of the announcement in the United States District
Court having jurisdiction over the congressional district whose
seat has been declared to be vacant. Such a challenge would be
heard by a three-judge panel convened pursuant to 28 U.S.C.
Sec. 2284, and a copy of the complaint would need to be
delivered to the Clerk of the House of Representatives. The
executive authority of the relevant state would have the right
to intervene either in support of or opposition to
thechallenge. A final decision by the panel would be required to be
issued within three (3) days of the filing and would not be reviewable.
Committee Consideration of the Legislation
INTRODUCTION AND REFERRAL
On Wednesday February 16, 2005, Mr. Sensenbrenner
introduced H.R. 841, Continuity in Representation Act of 2005,
which was referred to the Committee on House Administration.
HEARINGS
The Committee on House Administration did not hold hearings
on H.R. 841. (In the 108th Congress, the Committee held a
hearing on H.R. 841's predecessor, H.R. 2844.)
Markup
On Thursday February 17, 2005, the Committee met to mark up
H.R. 841. The Committee favorably reported H.R. 841, as
amended, by 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 the results of each
record vote on an amendment or motion to report, together with
the names of those voting for and against, to be printed in the
committee report.
Amendment to the amendment in the nature of a substitute
Offered by Ms. Millender-McDonald. The first vote during
the mark-up came on an amendment to extend the amount of time
during which expedited special elections must be held from 45
days to 60 days.
The amendment was rejected by voice vote.
Amendment in the nature of a substitute
Offered by Mr. Ney. The second vote during the markup came
on the amendment in the nature of a substitute offered by Mr.
Ney.
The amendment affords states greater flexibility in
selecting candidates for expedited special elections, grants
states with previously scheduled special elections the 30-day
extension, and clarifies its applicability to representatives
of D.C. and the U.S. territories.
The amendment was agreed to by voice vote.
Report favorably to the House
The Committee voted to report H.R. 841 favorably, as
amended. The vote to report favorably was approved by voice
vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) rule XIII of the Rules of
the House of Representatives, the Committee states that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of Rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
General Performance Goals and Objectives
The Committee states, with respect to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, that
the goal and objective of H.R. 841 is to ensure that a
functioning House of Representatives would be in place with the
ability to operate with legitimacy in the wake of a
catastrophic terrorist attack or other extraordinary
circumstances.
Constitutional Authority
In compliance with clause 3(d)(1) of rule XIII, the
Committee states that Article 1, Section 4 of the U.S.
Constitution grants Congress the authority to make laws
governing the time, place and manner of holding Federal
elections.
Federal Mandates
The Committee states, with respect to section 423 of the
Congressional Budget Act of 1974, that the bill does not
include any significant Federal mandate.
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. The Committee states that H.R. 841 preempts state
and local laws regarding the timing of holding special
elections to fill vacancies in the House of Representatives in
the event of extraordinary circumstances, unless such state and
local laws are otherwise consistent with the timeframes for
holding expedited special elections set forth in H.R. 841.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, the following estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 24, 2005.
Hon. Robert W. Ney,
Chairman, Committee on House Administration,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 841, the
Continuity in Representation Act of 2005.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sarah Puro.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
H.R. 841--Continuity in Representation Act of 2005
Summary: H.R. 841 would provide for the continuity of the
House of Representatives in the wake of a catastrophic event.
The legislation would require states to hold special elections
to fill vacancies in the House of Representatives within 45
days after an announcement by the Speaker of the House of
``extraordinary circumstances''--effectively 100 or more
vacancies in the House of Representatives. The bill also would
provide for judicial review of challenges to the announcement
of extraordinary circumstances. CBO estimates that enacting
H.R. 841 would have no significant impact on the federal
budget.
Section 4 of the Unfunded Mandates Reform Act (UMRA)
excludes from the application of that act any legislative
provisions that enforce the constitutional rights of
individuals. CBO has determined that certain provisions of H.R.
841 would fall within that exclusion because it would protect
the rights of oversees and military voters to cast a ballot.
Other provisions of the bill contain no private-sector mandates
as defined in UMRA. However, by requiring states to hold
elections within 45 days of an announcement of ``extraordinary
circumstances,'' H.R. 841 would contain an intergovernmental
mandate as defined in UMRA. CBO estimates that the annual cost
of the mandate over the next five years would not exceed the
threshold established in that act ($62 million in 2005,
adjusted annually for inflation).
Estimated cost to the Federal Government: CBO estimates
that enacting H.R. 841 would have no significant impact on the
federal budget over the next few years. Although the bill could
affect the timing and amounts spent on Members' salaries (which
are classified as mandatory) and office expenses (which are
subject to appropriation), CBO expects that any such impact is
unlikely to occur and would be minor in any event.
Intergovernmental and private-sector mandates contained in
the bill: H.R. 841 would require states to hold elections
within 45 days after an announcement by the Speaker of the
House that there are extraordinary circumstances--effectively
100 or more vacancies in the House of Representatives--unless a
regularly scheduled general election would occur within 75
days. This intergovernmental mandate would require 40 states to
adopt a quicker time frame than they currently have for holding
general elections in the event of a vacancy that does not
coincide with a regularly scheduled election; some states also
would need to amend their constitutions. Further, the bill
likely would prohibit states from holding primaries--as
required by law in some states--because the short time frame
for the general election would logistically prohibit the
holding of a primary.
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 section 2(5) of H.R. 841 would fall within that
exclusion because it would protect the voting rights of
citizens living oversees, including members of the armed
forces. Therefore, CBO has not reviewed this section for
mandates. Other provisions of the bill contain no private-
sector mandates as defined in UMRA.
Estimated direct costs of the mandates to state and local
governments: (Based on information from state and local
election professionals, CBO estimates that the cost to run a
special election ranges from $200,000 to $500,000 per district
(in 2004 dollars), depending on the circumstances and location
of the special election, the total number of special elections
being held nationwide, and other factors. In the absence of the
bill, states would hold elections and fill vacancies, but CBO
estimates that the new requirements and short time frame
required by the bill would likely generate significant
additional costs for states. The likelihood is small that, over
the next five years, events would occur triggering the
provisions in H.R. 841; therefore, CBO estimates that the cost
of mandates contained in the bill would not exceed the
threshold established in UMRA ($62 million in 2005, adjusted
annually for inflation). Further, even in the event of
extraordinary circumstances, it is unlikely that the additional
requirements would generate extra costs to states that would
exceed that threshold.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman:
SECTION 26 OF THE REVISED STATUTES OF THE UNITED STATES
Sec. 26. [The time] (a) In General.--Except as provided in
subsection (b), the time for holding elections in any State,
District, or Territory for a Representative or Delegate to fill
a vacancy, whether such vacancy is caused by a failure to elect
at the time prescribed by law, or by the death, resignation, or
incapacity of a person elected, may be prescribed by the laws
of the several States and Territories respectively.
(b) Special Rules in Extraordinary Circumstances.--
(1) In general.--In extraordinary circumstances, the
executive authority of any State in which a vacancy
exists in its representation in the House of
Representatives shall issue a writ of election to fill
such vacancy by special election.
(2) Timing of special election.--A special election
held under this subsection to fill a vacancy shall take
place not later than 45 days after the Speaker of the
House of Representatives announces that the vacancy
exists, unless, during the 75-day period which begins
on the date of the announcement of the vacancy--
(A) a regularly scheduled general election
for the office involved is to be held; or
(B) another special election for the office
involved is to be held, pursuant to a writ for
a special election issued by the chief
executive of the State prior to the date of the
announcement of the vacancy.
(3) Nominations by parties.--If a special election is
to be held under this subsection, the determination of
the candidates who will run in such election shall be
made--
(A) by nominations made not later than 10
days after the Speaker announces that the
vacancy exists by the political parties of the
State that are authorized by State law to
nominate candidates for the election; or
(B) by any other method the State considers
appropriate, including holding primary
elections, that will ensure that the State will
hold the special election within the deadline
required under paragraph (2).
(4) Extraordinary circumstances.--
(A) In general.--In this subsection,
``extraordinary circumstances'' occur when the
Speaker of the House of Representatives
announces that vacancies in the representation
from the States in the House exceed 100.
(B) Judicial review.--If any action is
brought for declaratory or injunctive relief to
challenge an announcementmade under
subparagraph (A), the following rules shall apply:
(i) Not later than 2 days after the
announcement, the action shall be filed
in the United States District Court
having jurisdiction in the district of
the Member of the House of
Representatives whose seat has been
announced to be vacant and shall be
heard by a 3-judge court convened
pursuant to section 2284 of title 28,
United States Code.
(ii) A copy of the complaint shall be
delivered promptly to the Clerk of the
House of Representatives.
(iii) A final decision in the action
shall be made within 3 days of the
filing of such action and shall not be
reviewable.
(iv) The executive authority of the
State that contains the district of the
Member of the House of Representatives
whose seat has been announced to be
vacant shall have the right to
intervene either in support of or
opposition to the position of a party
to the case regarding the announcement
of such vacancy.
(5) Protecting ability of absent military and
overseas voters to participate in special elections.--
(A) Deadline for transmittal of absentee
ballots.--In conducting a special election held
under this subsection to fill a vacancy in its
representation, the State shall ensure to the
greatest extent practicable (including through
the use of electronic means) that absentee
ballots for the election are transmitted to
absent uniformed services voters and overseas
voters (as such terms are defined in the
Uniformed and Overseas Citizens Absentee Voting
Act) not later than 15 days after the Speaker
of the House of Representatives announces that
the vacancy exists.
(B) Period for ballot transit time.--
Notwithstanding the deadlines referred to in
paragraphs (2) and (3), in the case of an
individual who is an absent uniformed services
voter or an overseas voter (as such terms are
defined in the Uniformed and Overseas Citizens
Absentee Voting Act), a State shall accept and
process any otherwise valid ballot or other
election material from the voter so long as the
ballot or other material is received by the
appropriate State election official not later
than 45 days after the State transmits the
ballot or other material to the voter.
(6) Application to district of columbia and
territories.--This subsection shall apply--
(A) to a Delegate or Resident Commissioner to
the Congress in the same manner as it applies
to a Member of the House of Representatives;
and
(B) to the District of Columbia, the
Commonwealth of Puerto Rico, American Samoa,
Guam, and the United States Virgin Islands in
the same manner as it applies to a State,
except that a vacancy in the representation
from any such jurisdiction in the House shall
not be taken into account by the Speaker in
determining whether vacancies in the
representation from the States in the House
exceed 100 for purposes of paragraph (4)(A).
(7) Rule of construction regarding federal election
laws.--Nothing in this subsection may be construed to
affect the application to special elections under this
subsection of any Federal law governing the
administration of elections for Federal office
(including any law providing for the enforcement of any
such law), including, but not limited to, the
following:
(A) The Voting Rights Act of 1965 (42 U.S.C.
1973 et seq.), as amended.
(B) The Voting Accessibility for the Elderly
and Handicapped Act (42 U.S.C. 1973ee et seq.),
as amended.
(C) The Uniformed and Overseas Citizens
Absentee Voting Act (42 U.S.C. 1973ff et seq.),
as amended.
(D) The National Voter Registration Act of
1993 (42 U.S.C. 1973gg et seq.), as amended.
(E) The Americans With Disabilities Act of
1990 (42 U.S.C. 12101 et seq.), as amended.
(F) The Rehabilitation Act of 1973 (29 U.S.C.
701 et seq.), as amended.
(G) The Help America Vote Act of 2002 (42
U.S.C. 15301 et seq.), as amended.
MINORITY VIEWS OF RANKING MEMBER JUANITA MILLENDER-McDONALD AND
REPRESENTATIVE ROBERT A. BRADY
H.R. 841, a bill to require States to hold special
elections to fill vacancies in the House of Representatives in
extraordinary circumstances, as reported with an amendment by
the Committee on House Administration, differs only slightly
from H.R. 2844, which passed the House in the 108th Congress
and died in the Senate. It is a fatally flawed bill which
compromises democracy and it deserves defeat again this year.
H.R. 841 contains a wish list of provisions which would set
impractical deadlines, ignore the rights of candidates to run
and of voters to participate in elections, and create confusion
in the aftermath of a national catastrophe when the country
needs the stability of established constitutional processes and
the legitimacy of the rule of law.
H.R. 841 would require states to invent mechanisms to
implement what may be radical changes in their own election
laws and political structures. The bill creates a procedure
that may be little more than a shell, calls it a ``special
election'', and leaves states to pick up the pieces. What would
happen if the states fail to do so? The bill does not say.
We want to stress that H.R. 841 has no partisan content. It
is simply a poorly written piece of legislation. Congressional
continuity, which encompasses other issues beyond the scope of
this legislation, is not a partisan issue. No one gains
advantage when hundreds of Members may be dead, incapacitated,
or confined to hospitals or burn wards.
PRINCIPAL PROVISIONS
This legislation would exercise Congress' extraordinary
powers under Article I, Section 4, Clause 1 of the Constitution
to alter existing state laws which set the ``Times, Places and
Manner'' of elections to the House of Representatives to change
the way special elections to fill vacancies are conducted
nationwide. The bill's provisions would take effect only under
``extraordinary circumstances'', which is defined by the
legislation as being at any time after the Speaker of the House
announces that the number of vacancies in the body exceeds 100.
By shortening the time frame for the conduct of such
elections to a maximum of 45 days following the Speaker's
declaration, the sponsors claim that the legislation would
bring the House back to full strength following a catastrophe
more rapidly than if existing state laws, which vary widely,
were utilized.
Two major amendments sponsored by the Minority were
accepted last year, one of them very reluctantly, on the House
Floor. The first amendment, offered by Representatives Skelton
and Maloney, dealt with the time frame for getting ballots to
overseas absentee and military voters; the other was adopted as
the motion to recommit by Representative Watt after the Rules
Committee refused to allow then-Ranking Member Larson to
present it in the Committee of the Whole in the form of an
amendment. This amendment was intended to protect major civil
rights and voting rights laws, and laws to protect handicapped
voters, from being gutted. Its compatibility with the bill's
45-day deadline remains unclear. Both provisions remain in the
new bill.
60-DAY COMPROMISE REJECTED
The bill as currently designed probably cannot be improved
enough to make it workable, but the Chairman accepted some
ideas from the Minority to clarify legislative language before
the February 17 markup. However, the Majority voted down
ouramendment to give the states greater flexibility by allowing a 60-
day period for the conduct of the expedited special elections. This was
an effort to find common ground after the House rejected a 75-day time
frame offered last year by Representative Larson.
The amendment which was offered in the Committee by Ranking
Member Millender-McDonald would have introduced greater
flexibility into the expedited process, to allow more overall
time for the elections, and to give the states additional
options on how to conduct them. 60 days is not a magic bullet,
any more than 45 days is, but experience--as well as decades
spent as candidates running for public office--teaches us to
err on the side of flexibility, especially at a time of
potential national crisis.
We anticipate that the 60-day proposal will be submitted
again for a vote by the full House.
Proponents seeking a truncated time frame for this
legislation have often sought to cite Doug Lewis, Executive
Director of the Election Center, which represents the nation's
voter registration and elections officials and administrators
at the city, township, county and state levels. But he has not
endorsed this bill and has said that 45 days is still too short
and that a timeframe closer to 60 days would provide states
with greater assurance of success. State and local election
officials at election process forums over the last two years
have raised questions about the time frame as well.
In testimony prepared before the Committee on House
Administration on September 18, 2003, Mr. Lewis framed the
debate as follows:
What is an election? Is it a date-certain event so
that voters can vote, or is it more than that? Is an
election in American democracy really a ``process''
that includes time for the identification of
candidates, the ability of candidates to mount a
campaign, to raise funds, to attract supporters, to
inform the voters of what their choices are between the
individual contestants, and then going to the polls to
make that choice?
The point is this: if it is only an event, then we
can structure an event in a short time frame and carry
off the event as flawlessly as possible. If, however,
you define it in the broader ``process'' terms, then
you have to allow the process time to work.
We agree that elections are a process which implements
democracy. A longer time frame allows states more time to deal
with the mechanics of elections, and allows the public more
time to gain awareness of the candidates and the campaign.
After polling elections officials from around the country,
Doug Lewis summarized the results:
While the responses indicated a variety of dates
ranging from the shortest time period of 35 days (after
determination of who the candidates will be) to a
period of four months, it appears that elections
administrators feel that they can conduct an election
with as few as 45 days. However, the elections
officials would be far more confident that the
interests of democracy would be best served by having
up to 60 days to get the elections organized and held.
Each additional day beyond the 45-day minimum time
frame creates greater confidence in the process.
[Testimony of Doug Lewis before the Committee on House
Administration, page 3.]
We also prefer to come down on the side of the interests of
democracy. And our instincts as candidates tell us that 45-days
is simply too short.
Since the intent of the bill is to fill vacancies in the
House, we should not create artificial barriers to doing so.
Nothing in the bill itself provides that a Member-elect would
rush to the Floor tobe sworn in at the end of 45-days, 60-days
or any other such framework; states must correct their results, certify
their returns, await receipt of absentee ballots and possibly recount
ballots in close races. The 2004 Washington gubernatorial race
demonstrates the possibilities for controversy and delay inherent in
the election administration process.
No House can bind a future one, and the House can make its
own judgments based on the totality of facts in any potential
election contest based on a potential breach of the 45-day
deadline. However, proponents should admit that if the states,
for whatever reason, fail to comply with the bill's statutory
scheme, attempts to enforce it would defeat their ultimate
objective of filling House seats.
NOMINATION OF CANDIDATES
Controversy has long surrounded provisions in paragraph 3
of the bill requiring that party nominees be selected within 10
days of the Speaker's announcement. This provision had the
effect of banning primaries to select nominees for the House
and requiring that a party committee or related entity make the
decision, an unnecessary restriction which did nothing to
enhance the bill's overall objective. Chairman Ney's manager's
amendment, while not excising this language, pulled some of its
teeth by allowing the states to consider having primaries and
other options to nominate candidates. The 45-day overall
deadline will only give them limited flexibility in that
regard, however.
Some states already use a party-committee system to conduct
special elections under normal circumstances. Many others
conduct primary elections, and any system which cuts the
electorate out of critical decisions would be anathema to
voters in those states.
We feel strongly about this issue because there are some
states in which the parties play a lesser roll in selecting
candidates. The original bill would have gutted long-standing
political traditions across the nation, such as primaries, at a
time when a reconstituted Congress would need to renew its
legitimacy from the American people.
PULLING THE TRIGGER
At the hearing before our Committee on November 19, 2003,
questions arose about the operation of the trigger mechanism in
the bill, which would be activated by the Speaker when the
threshold exceeding 100 vacancies is reached. While the bill
does not say so specifically, apparently provisions of House
rules allowing a ``Speaker pro tempore'' designated from a list
left by a deceased Speaker to pull the trigger would kick in.
There is a problem with this formulation. What would happen
if all of the Members of the House were killed or
incapacitated, leaving no one to pull the trigger?
During the Floor debate on April 22, 2004 on H.R. 2844,
Representative Dreier, one of that bill's lead sponsors,
attempted to respond to this question as posed by
Representative Watson. However, in doing so he raised more
questions than he answered. He said ``* * * it would be up to
the people to come together and make the determination as the
rebuilding process begins.'' [Congressional Record, p H2331].
How? Isn't the purpose of this bill supposedly to facilitate
the return of representative government, the kind the
Constitution gives to us? It is the responsibility of Congress
to anticipate and find solutions to problems when it enacts
laws, not to rely on some vague national town meeting if the
bill fails to work. This is yet another example of how the
bill's sponsors have not thought it through.
The Manager's amendment does address a different problem
with the trigger, raised by the Minority. As originally
written, the bill would have cancelled ongoing special
elections once the trigger point was reached. With candidates
perhaps already chosen and campaigns already in progress under
state laws, it would have forced new campaigns to begin under
provisions of the Federal statute, possibly with new candidates
and certainly with chaos. It is easy to imagine such a scenario
if a catastrophe created many vacancies in the House, but still
fewer than 101.
The chief executive authorities of states must, under the
Constitution, issue writs of election to fill these vacancies
under terms of state law. Imagine a scenario where Members may
be suffering from radiation poisoning or severe burns, with
fatalities occurring over a period of time. It might be some
time before 101 vacancies were reached, in stages.
The new provision would clarify that any special elections
which are already in progress to fill vacancies at the time
that the threshold is reached could continue, under a new 75-
day deadline following the Speaker's announcement. Only
vacancies not declared until after the triggering would fall
totally under the Federal provisions. We would have preferred
to allow the pre-trigger special elections to proceed to their
normal conclusion under state law, but the clarification is
superior to the original language in the bill.
The Manager's amendment would also allow expedited special
elections under the Federal statute to fill the seats of the
four delegates to the House and the resident commissioner of
Puerto Rico, if those seats were vacant at the time the 101-
Member threshold was reached. This provision was suggested by
our colleague from the District of Columbia, Eleanor Holmes
Norton, during the Floor debate last year, and the bill's
sponsors have accepted language by Ranking Member Millender-
McDonald to implement it.
The delegates and resident commissioner are not Members of
the House elected from states, and their presence or absence
would have no effect on the whole number of the House or its
ability to achieve a quorum. The Speaker does not take formal
notice of vacancies in these positions under the House rules.
However, allowing their constituencies to participate in
expedited elections could help ensure that new delegates might
appear more quickly to serve as a voice, if not a vote, in the
repopulating House of Representatives. How the exercise of this
provision might affect these unique constituencies in practice
is unclear, as it is for congressional seats generally.
ABSENTEE VOTING
In a provision retained from the last Congress, the bill
urges, but does not require, states to ensure to the greatest
extent practicable, including through use of electronic means,
that absentee ballots are transmitted not later than 15 days
after the Speaker declares that the 101-vacancy threshold has
been reached. It also requires states to accept and process
such ballots if received not later than 45 days after the state
transmits the ballot.
Some questions have arisen about whether these time frames,
like the overall time frame imagined in the bill, are adequate.
Greater protection would be afforded to the rights of Americans
residing abroad, including military and diplomatic personnel,
with a longer overall special election deadline.
UNFUNDED MANDATE
This legislation imposes an unfunded mandate upon the
states. It does so because the bill's principal purpose is to
impose auniform special election system on the states following
a catastrophe, which the states are then left to cope with somehow.
Special elections to fill vacancies occur in every
Congress, under provisions of state law. There is one going on
right now for the late Representative Bob Matsui's seat in
California. But if special elections occur outside the time
frame and structure of elections for other offices which have
already been planned, states incur additional costs. Some
states allow special elections to be timed to coincide with
other regularly-scheduled events, such as primaries, to reduce
costs. Others choose not to use primaries to pick special
election nominees, a choice acceptable to the voters in states
where the legislatures have enacted that practice.
The new Federal mandate, according to a report of the
Congressional Budget Office printed in the last Congress'
committee report on H.R. 2844 (H. Rpt. 108-404, part 1) of
December 8, 2003, would require 40 states to adopt a quicker
time frame than they already have for holding special elections
which do not coincide with a regularly scheduled election, and
some states would need to amend their state constitutions.
CBO estimates that the cost to run a special election is
between $200,000 and $500,000 per district in 2004 dollars. CBO
also estimates that the overall additional costs generated by
the bill might not exceed $60 million beyond what would
normally be spent. We are concerned that the price tag might be
higher, depending on the particular catastrophic circumstances
which trigger provisions of the bill. How those extra costs
might be spread around the country is, of course, a complete
unknown.
But we also need to look at the costs in another way. What
is the cost to democracy from passing this bill? The costs are
profound. This bill would deprive the public of the benefits of
a full and open campaign, with opportunities to register to
vote, meet the candidates, observe political debates, learn
about the issues in the media, and receive and read literature
about the candidates. In states which were forced to abandon
their party primaries because of lack of time caused by the 45-
day deadline, the public could not choose its own candidates.
That function would fall to a party entity of some kind; a
committee, caucus or convention. In many districts, which lack
two-party competition, the choice at this level would dictate
the final outcome of the pro forma election which would follow.
Candidates might not have sufficient time to be able to make
the political and personal decisions required to offer
themselves as candidates.
Not every person who would make a good Member of Congress
is an instant candidate just waiting to run. Starting a
campaign requires consulting friends and family, weighing
finances, assessing staff, gauging support from other political
figures and organizations, and establishing a campaign
committee with the ability to operate within the Byzantine
framework of today's campaign finance laws. And some who may
wish to run might not be able to if petition signatures were
required to get on the ballot, or money had to be raised to pay
filing fees or meet other qualifications which might be
disrupted by the deadlines in the legislation.
The public may suffer because of lack of time to manage the
election competently and fairly. There are significant problems
with voter registration lists, voting by felons, voting with
provisional ballots, transmitting, receiving and counting
absentee ballots, and staffing the polls with voting machines
and election workers even under the best of circumstances in
normal elections. After a catastrophe, we can add a potential
breakdown in communications systems and other infrastructure,
including transportation, along with potential inability to
order voting machines and ballots.
CONTINUITY DESERVES BROADER DEBATE
The Minority has made a good faith attempt to mitigate the
most serious problems in this bill, but we remain hamstrung by
the concept of national uniformity in the conduct of special
elections to the House, and by the Majority's insistence on the
45-day rule.
We do not oppose the idea of Federal legislation expediting
House special election processes in the states, or encouraging
the states to do so themselves by modifying their laws and
state constitutions. On the contrary, we encourage constructive
action at both levels of government and believe that public
debate on broader issues of continuity of government should be
encouraged, through public forums and other means. We want to
especially thank the Continuity of Government Commission,
organized by the Brookings Institution and the American
Enterprise Institute, for their hearings, reports and other
efforts to enhance the public debate.
During last year's debate on this bill, opponents were
unfairly attacked with misleading criticism and
misrepresentation of the various proposals for constitutional
amendments, which were intended to plug gaps in the bill or to
address related continuity of government issues.
We make this observation as Members who voted against both
Representative Baird's constitutional amendment providing
temporary appointments to the House, and Representative
Dreier's constitutional amendment approved on January 4, 2005--
the one masquerading as a House rule--which gives a House
without a quorum all sorts of extraordinary powers which the
Framers of the Constitution explicitly prohibited it from
exercising. The failure to allow separate consideration of this
outrageous ``provisional quorum'' proposal was an example of
how the Majority was willing to start off the new Congress by
preventing free and open debate and amendment even on matters
of the most immense institutional and historical significance.
We urge our colleagues not to rush H.R. 841 through the
House again, and to allow an open amendment process. We saw
what happened last year, when the Senate refused to consider
the legislation. Passing essentially the same bill and making
the process partisan risks getting the same result--nothing.
We have heard complaints from some that the Senate should
have deferred to the House last year--and should do so now--
because this bill affects only House elections. We believe that
this argument is spurious and merely reflects the
disappointment of the Majority leadership in the House in not
being able to bully the other chamber.
H.R. 841 affects the structure and functioning of the
entire government, which impacts directly on the Senate and the
constituents senators represent, as well as the executive
branch and judiciary. The failure of the legislation last year
ultimately validated the constitutional structure set up by the
Framers, which requires that Congress can, by law, change state
laws governing Federal elections, and denies to either chamber
of Congress alone the dangerous power to dictate conditions for
the conduct of elections to fill its seats. The constitutional
system of checks and balances forced this legislation to
undergo scrutiny outside the House which it could not survive.
The core problem remains. This bill's rigid deadlines are
tailor-made to foster confusion and litigation at a time of
future national crisis, when the American people will need to
renew the legitimacy of their elected representatives in the
House. In its zeal to expedite process, H.R. 841 compromises
democracy and should not become law.
Juanita Millender-McDonald.
Robert A. Brady.