House Report 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

[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.

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.