State-Federal Relations

October 10, 2007

The Honorable Steny Hoyer
The Capitol
Room H-107
Washington, DC 20515

RE: H.R. 811

Dear Representative Hoyer:

Thank you for your continued leadership on the issue of election reform. The National Conference of State Legislatures (NCSL) appreciates the time and attention you have devoted to the enactment and funding of the Help America Vote Act and now to H.R. 811. In a recent meeting with NCSL staff and others, you requested that NCSL further examine H.R. 811 and suggest minor changes to this legislation in order to ameliorate some of its more onerous preemptive provisions and to address related funding issues.

NCSL has approached the task of “tweaking” H.R. 811 guardedly. Our previous reviews resulted in our conclusion that the legislation is fundamentally flawed. Upon further review, we are convinced that H.R. 811 cannot merely be “tweaked” in order to make its provisions workable. NCSL is committed to working with you to craft a new piece of legislation that addresses both the need for election integrity and state and local concerns. The process that is utilized ought to mirror the bipartisan process that was used in crafting HAVA, and unfunded federal mandates and preemptions of state laws should be avoided or minimized. If however, there is an unwillingness to restart the drafting process, we respectfully offer the following modifications to H.R. 811 and request that they be incorporated into the bill as part of a Manager’s amendment prior to the legislation’s consideration on the House floor.

First, if Congress is compelled to preempt state voting systems requirements, NCSL recommends that studies and findings should precede mandates. H.R. 811 should be restructured to require that a neutral federal technology agency, such as the National Institute for Standards and Technology (NIST) or the Election Assistance Commission (EAC), conduct rigorous and mandatory testing of currently available and newly developed voting systems. The results of this testing must be reported before requiring states to jettison voting systems that cost millions of dollars and that they were required to purchase under HAVA. In addition, H.R. 811 should avoid requiring states to purchase new voting machines until machines that accomplish the goals and objectives of H.R. 811 are fully developed, tested, and deemed reliable with an acceptable error rate. If Direct Recording Electronic (DRE) voting machines are found to be unreliable, federal legislation should provide for a DRE buyout program where federal funds are appropriated in the first fiscal year to ensure states are not left holding the financial bag for any expense.

Second, if there must be mandates, there must be state flexibility in implementation standards written into the text of the bill. For example, the audit provisions of H.R. 811 are extremely prescriptive and do not allow for states to creatively and innovatively address the issue of statewide audits. A better approach, and one that is more compatible with state policymaking in this area, is to require states to conduct audits, but leave the implementation details to the states themselves. State legislatures are perfectly capable of designing a process that meets their individual needs and that complies with a broad federal requirement. It is important to remember the example set in HAVA. State legislatures, Secretaries of State and state and local election administrators rose to this challenge after HAVA passed and were able to craft implementation approaches that both met the broad mandates contained in HAVA and the needs of their constituents.

Third, the potential for creating yet another unfunded federal mandate is alarming. NCSL highly recommends including a dedicated and appropriated funding stream to assist states in implementing whatever mandates might be contained in H.R. 811. NCSL does not believe Congress should require states to draw from their HAVA monies to meet the requirements of H.R. 811. Additionally, NCSL asks that funds be actually appropriated before states be required to comply with the provisions of H.R. 811. To this end, NCSL suggests that a funding trigger be inserted to the text of H.R. 811 as part of any Manager’s Amendment prior to House Floor action.

NCSL believes that the three changes outlined above are reasonable. We share your goal of passing election reform legislation that would actually be successful in its implementation and balances the need for reform with the need for state flexibility. We look forward to working with you on this issue further. Please have your staff contact NCSL staff, Susan Parnas Frederick at (202)624-3566 or by email at susan.frederick@ncsl.org if you have any further questions. Thank you.

Sincerely,

Donna D. Stone
Delaware House of Representatives
President, NCSL Speaker Joe Hackney
North Carolina House of Representatives
President-Elect, NCSL

Cc: Keith Abouchar