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ELECTION REFORM -- (Senate - December 08, 2004) GPO's PDF
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Mr. DODD. Mr. President, yesterday the Leadership Conference on Civil Rights, along with Common Cause and the Century Foundation, sponsored the first comprehensive public review of election day issues, including a review of the implementation of certain provisions of the Help America Vote Act, HAVA, bipartisan legislation I was pleased to coauthor in the 107th Congress. Numerous other organizations are also planning similar reviews, including the distinguished ranking member of the House Judiciary Committee, Congressman John Conyers, who is hosting a forum on election day issues today on the House side. As the primary Senate author of HAVA, I welcome these reviews and believe that Congress can learn much from them in terms of whether HAVA is working as intended.
Following the debacle of the 2000 Presidential election, I sought the input and counsel of the Leadership Conference and countless other civil rights, disability, language minority, and voting rights groups to fashion legislation which would ensure that every eligible American voter would have an equal opportunity to cast a vote and have that vote counted. Our efforts, and the efforts of others, produced the Help America Vote Act. HAVA has been hailed as the first civil rights law of the 21st century, and I am committed to ensuring that it is fully implemented as such.
The results of the 2004 Presidential election have not been contested in the same manner as those of the 2000 election. However, the jury is still out on whether HAVA successfully addressed the problems that arose in the 2000 election. While I believe there is still much work to do to ensure the franchise for all Americans, I am confident that without HAVA, thousands of eligible American voters would not have been able to cast a vote, nor have their vote counted, in the November 2004 Presidential election.
It is important to remember that HAVA is not yet fully implemented. In some respects, the most important reforms have yet to be implemented by the States. These reforms include mandatory uniform and nondiscriminatory requirements that all voting systems provide second-chance voting for voters, be fully accessible to the disabled, provide for a permanent paper record for manual audits, and establish standards for what constitutes a vote and how such a vote will be counted for each type of voting system used by a State.
Additional reforms, which must be implemented by 2006, include the establishment of a computerized statewide voter registration list which must contain the name and registration information for every eligible voter in a State. Most importantly, the statewide database must be available electronically to every State and local election official, ensuring access to voter information at the polling place on election day. Had these additional reforms been in place this November, many of the election day problems that arose across the country could have been avoided or resolved at the polling place.
But what we do know is that HAVA's requirement that all States shall provide a provisional ballot to voters who are challenged at the polls, for any reason, ensured the franchise for thousands of Americans on November 2 this year. Although many States had forms of provisional ballots, HAVA requires that any voter who is willing to affirm that he or she is registered in the jurisdiction where they want to vote, and are eligible to vote in that election, must be allowed to cast a provisional ballot for the Federal offices in that jurisdiction. In Ohio alone, 155,000 voters cast provisional ballots, of which an estimated 77 percent were counted. That represents over 119,000 thousand American voters who otherwise might not have been able to cast a vote or have their vote counted, but for HAVA.
Some States, including Ohio, attempted to restrict the right to a provisional ballot, but were ultimately unsuccessful. The Federal Court of Appeals for the 6th Circuit of the United States affirmed the absolute right to receive a provisional ballot, without any additional requirements, in the decision of Sandusky vs. Blackwell decided on October 26, just one week prior to the election. That decision upheld the right of an individual voter to seek judicial redress of the rights conferred by HAVA and confirmed the absolute right of a challenged voter to receive a provisional ballot. I was pleased to file an amici curiae brief, along with my distinguished colleague, Congressman STENY HOYER, in this case in which we urged the court to affirm and enforce these rights.
As with any comprehensive civil rights legislation, HAVA's reach and effectiveness will have to be hammered out by the courts. As that process plays out, coupled with the States' implementation of the remaining HAVA reforms, we will be in a better position to assess whether this landmark legislation hit the mark or needs further reform.
In order to assist Congress in assessing the effectiveness of HAVA, specifically with regard to the implementation of the provisional ballot requirement, I have requested that the GAO conduct and compile a nationwide review of state implementation of this provision. In particular, I have asked the GAO to compile data on the number of provisional ballots cast in the 2004 election, the number of provisional ballots counted, the number not counted and the reasons such provisional ballots were not counted. While it is already clear that the States are implementing this provision in significantly differing manners, it is troublesome that whether a Federal ballot is counted or not depends upon State law.
Efforts such as the conference and forum this week, and others to occur in the coming weeks, are vital to understanding the full impact of HAVA and its limitations. Although some weaknesses in HAVA are already apparent, and it would be my intent to introduce legislation early in the 109th Congress to address these weaknesses to better ensure HAVA's effectiveness, it is through conferences and forums such as these that Congress can assess what further reforms are needed.
At some point, we must ask ourselves whether we can ever truly ensure an equal opportunity to cast a vote and have our votes counted for all Americans when our elections are administered by 55 different State and territorial governments through over 10,000 local jurisdictions in a decentralized manner. Even in light of HAVA's farreaching reforms, this Nation is almost unique in its administration of Federal elections at the local level. Even under HAVA, States and localities have broad, but not absolute, discretion in how they implement HAVA. Similarly, the voting system standards which the Federal Election Assistance Commission will issue, pursuant to HAVA, remain voluntary only.
This discretion played out quite differently across this Nation with respect to whether provisional ballots, once cast, were actually counted. It is time to consider whether, for Federal elections, there is a national responsibility to ensure that no matter where and how a ballot is cast for the Office of the President of the United States, all Americans will have confidence that their vote was cast and counted in a uniform and nondiscriminatory way.
The Help America Vote Act is historic landmark legislation that comprehensively defines, for the first time
GPO's PDF
in this Nation's history, the role of the Federal Government in the conduct of Federal elections. It was an important first step. I look forward to working with my colleagues and the civil rights, disability, language minority, and voting rights communities, as well as State and local election officials, to continue our work to ensure that all Americans have access to the most fundamental right in a representative democracy: the right to cast a vote and have that vote counted.
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