The Voter Empowerment Act of 2012 H.R. 5799
Sponsor: Rep. John Lewis (D-GA)
Last Action: 5/29/2012. Referred to House Sub- Committee on Health
Purpose: The purpose of the legislation is to:
- Modernize voter registration
- Promote access to voting for individuals with disabilities
- Protect the ability of individuals to exercise the right to vote in elections for Federal Office
SUBTITLE A- PROMOTING INTERNET REGISTRATION
Section 101: Requiring Availability of Internet for Voter Registration
Details how each state must provide individuals with the option for online voter registration that includes assistance with completion of application, submission of materials and confirmation of receipt of materials.
The law mandates State election agencies must allow online signatures through their databases as well as allowing the traditional paper applications to be completed. Additionally, states will be required to protect all voter information, a telephone-based services option will be allowed as a substitute for online registration and online voters will have to be treated the same as those who register by traditional mail.
Section 102: Use of Internet to Update Registration Information
The chief election officer of each state will be required to create an online, statewide voter database that will contain updates to voter registration such as address, social security number and birthday. After the database is created, it will be the states’ responsibility to maintain it and send confirmation of the receipt of any application/registration materials via electronic and traditional mail.
Section 103: Provision of Election Information by Electronic Mail to Individuals Registered to Vote
All states will be required to include space on all voter registration forms for an email address which may only be used for election purposes. For individuals who choose to use email, states must send them a reminder no later than 7 days before an election detailing the location of their polling place, hours of operation and whether or not identification will be required at the site.
Section 104: Clarification of Requirement Regarding Necessary Information to Show Eligibility
In the case of online registration, a state must consider a voter registration application complete if the forms and attestation are filled out correctly. In the case of an online application, a signature ensures that the application is complete.
SUBTITLE B- AUTOMATIC REGISTRATION OF CERTAIN INDIVIDUALS
Section 111: Automated Voter Registration
Each state source agency (motor vehicle agency or voter registration agency, state education department, state/local courts in the case of ex-felons) must send the name, date of birth, residential address, mailing address, signature (in electronic form), date of last change to the information and to the chief election officer in each state that has received services, been made aware of their eligibility to vote and haven’t declined registration (voters must indicate on form). The chief election officer is also responsible for the following:
- Every time the source agency receives updated information about voter registration, the information must be sent to the Chief Election Officer daily.
- If a person is eligible to vote, but is not on the computerized state registration list, the chief election officer must ensure that the individual is registered to vote in such elections not later than 5 days after receiving the information, regardless if there is a signature from the individual.
- If a person is on the statewide list, he/she shall be mailed a postcard attestation that the person is a U.S. Citizen and can vote in the state pursuant to state law.
- Voter information must be stored at the source agency after it has been transferred by the chief election officer of the state
- If information on the voter list isn’t consistent with a voter’s registration, the information will be updated after a determination of which version is the correct one.
- All voters are notified when the information is updated after a determination of which version is the correct one.
Section 112: List Maintenance, Privacy and Security
The chief State election official must establish standards governing the comparison of data on the statewide computerized voter registration list, data provided by source agencies, relevant data from other sources to determine ineligibility, to prevent unauthorized access of information and protection of source information.
He/she must also develop uniform and nondiscriminatory standards to determine how people will be deemed ineligible to vote and provide a defense for ineligible voters who are accidentally registered to vote.
Section 113: Promoting Accuracy of Statewide Voter Registration Lists
After the statewide voter registration lists have been created, it is the responsibility of any source agency that monitors when voters change their residential address to transmit the information to the chief election officer within 24 hours of receiving it. Voters also must be notified when the state has confirmed their change of address via email or traditional mail.
Section 114: Definitions
Section 115: Effective Date
Subtitle goes into effect for November, 2014 for federal elections
SUBTITLE C- OTHER INITIATIVES TO PROMOTE VOTER REGISTRATION
Section 121: Same Day Registration
States will be required to allow individuals to register to vote on the day of a federal election (or an early voting day) and permit those already registered to update and/or correct any information.
Section 122: Acceptance of Voter Registration Applications from Individuals Under 18 Years of Age
A state may not refuse to accept registration applications from individuals under the age of 18 so long as they are eligible to vote by election day.
Section 123: Annual Reports on Voter Registration Statistics
No later than 90 days at the end of each calendar year, states must compile a report to be submitted to the Election Assistance Commission (EAC) and Congress, detailing the number of individuals registered, the number of voter registration forms transmitted by motor vehicles authorities in the state.
In the same report, states are required to discuss the number of registrations accepted, declined, change of address forms, the number of voters on the statewide list whose information was changed as a result of transfers from state agencies and the number if voters whose information was changed by request.
SUBTITLE D- AVAILABILITY OF HAVA REQUIREMENTS PAYMENTS
Section 131: Availability of Requirements Payments Under Help America Vote Act (HAVA) to Cover Compliance with New Requirements
A state may use a requirements payment to carry out any of the stipulations of the Voter Registration Modernization Act of 2012.
SUBTITLE E- PROHIBITING INTERFERENCE WITH VOTER REGISTRATION
Section 141: Prohibiting, Interfering With, or Preventing Registering to Vote
This bill makes it unlawful for states to interfere with or prevent any individual from registering to vote or aiding someone else in registering to vote. The penalty for such interference is a fine and/or up to 5 years in prison.
Section 142: Establishment of Best Practices
The EAC will be directed to develop and publish their recommendations for ensuring that there is no unlawful prevention of voter registration.
Possible Preemption of State Regulations in this Area. HAVA Did Not Grant the EAC Regulatory Authority to Prevent State Preemptions.
TITLE II- ACCESS TO VOTING WITH INDIVIDUALS WITH DISABILTIES
Section 201: Requirements for States to Promote Access to Voter Registration and Voting for Individuals with Disabilities
For voters with disabilities, states will be required to make several provisions:
- Individuals with disabilities must be able to use absentee registration procedures and ballots for federal elections.
- Those with disabilities must be able to request or receive registration forms and ballots via regular or electronic mail.
- States must provide absentee ballots no later than 45 days prior to an election, so long as the request has been received 45 days before the election.
- There will be a single state office responsible for providing information to individuals with disabilities.
- Attorney General may grant a hardship exemption for states that are unable to provide electronic transmissions to those with disabilities (same criteria as MOVE Act).
Section 202: Pilot Programs for Enabling those with Disabilities to Register to Vote Privately and Independently at Residences
The EAC will provide funds (in the form of grants) so that states can conduct pilot programs so that individuals can use electronic means (internet and telephones with assist devices) to register to vote and request and receive absentee ballots which permits them to do so privately/independently in their residences and may use telephones to cast ballots so long as it is not connected to the internet.
There will be a total of $30,000,000 appropriated for grants in the 2014 election cycle. Any state that receives a grant will be required to submit a report no later than 90 days after the election cycle detailing the specific pilot programs.
Section 203: Expansion and Reauthorization of Grant Program to Assure Voting Access for Individuals with Disabilities
The EAC will provide grants for states that make available opportunities for those with disabilities to receive electronic absentee ballots and vote in privately at their homes.
TITLE IV- PROHIBITING VOTER CAGING
Section 301: Voter Caging and Other Questionable Challenges Prohibited
Voter caging as defined as the use of a nonforwardable document that is returned to the sender, any document with instructions to the addressee that it be returned to sender but is not returned and any unverified list of ineligible individuals as a basis for prohibiting them from registering or voting in any election.
No person other than a state election official can formally challenge someone’s eligibility to vote unless the challenge is supported with personal knowledge regarding the ineligibility (must be documented in writing as well as an oath or affirmation). Provides for penalties who knowingly allow eligible voters to be challenged.
Section 302: Development and Adoption of Best Practices for Preventing Voter Caging
No later than 180 days after the passage of the Voter Empowerment Act, the EAC should develop and publish their recommendations for the best practices to deter voter caging.
No Consultation with States is Required in the Development of these Standards
Section 303: Severability
If any portion of the title or any of the amendments are found to be unconstitutional, the remainder of the title and amendments made to the title will not be affected by the decision.
TITLE IV-PROHIBITING DECEPTIVE PRACTICES
Section 401: Prohibition on Deceptive Practices in Federal Elections
Any person (election official), who, in any election for any federal office, knowingly deprives, defrauds or attempts to deprive and defraud someone of their right to vote by communicating false, election related information will be fined and serve up to 1 year in prison.
Section 402: Modification of Penalty for Voter Intimidation
The penalty for voter intimidation will be a fine and up to 5 years in prison instead of the previous 1 year in prison.
Section 403: Sentencing Guidelines
No later than 90 days after the passage of the Voter Empowerment Act, the US Sentencing Commission should amend the federal sentencing guidelines to include the new provisions of the law.
Section 404: Reporting Violations and Corrective Actions
Any person can submit a suspected violation to the Attorney General after which, if he/she determines there is reasonable evidence to suggest a violation, they will take measures to provide correct information to voters affected by false information. The Attorney General will then refer the issue to the correct authorities for criminal prosecution.
TITLE V- DEMOCRACY RESTORATION
Section 501: Rights of Citizens
States cannot deny the right to vote for citizens who have been convicted of a crime unless said person is serving a felony prison sentence at the time of the election.
Section 502: Enforcement
The Attorney General may obtain declaratory or injunctive relief for any violations of this provision. Any person who has been aggrieved by a potential violation of this provision should provide written notice to the chief election official of the state involved.
Section 503: Notification of Restoration of Voting Rights
For those individuals who have been convicted of crimes in the past:
- States must notify those who have previously been convicted of a crime that they are once again allowed to vote in federal elections.
- For those convicted of felonies, notification must be provided when they are serving probation or released from custody.
- For misdemeanor convictions, notification is required at the time of the conviction
- For any federal conviction, the Director of the Bureau of Prisons will notify any individual convicted under a federal law.
Section 505: Relation to Other Laws
The bill does not preempt states from enacting less restrictive restoration of voting laws.
Section 506: Federal Prison Funds
No state will receive any federal prison assistance without complying with the new regulations surrounding the notification of the restoration of voting rights for former prisoners.
TITLE VI- ACCURACY, INTEGRITY, AND SECURITY OF ELECTIONS
Section 601: Paper Ballot and Manual Counting Requirements
In each state:
- Individual, durable, voter-verified paper ballots are required for all elections
- The votes must be counted by hand or optical character recognition device
- The voter must be provided the opportunity to correct the ballot
- Ballots are not to be kept in any way so that it can be traced back to the individual who cast it
- The paper ballot is considered official ballot for the purpose of a recount or audit
Section 602: Accessibility and Ballot Verification for Individuals with Disabilities
The voter must have the ability to privately and independently examine to verify and cast it without having to manually use the paper ballot.
$5,000,000 will be allocated to the Director of the National Science Foundation to study and develop paper ballots that will be accessible to the general public.
SUBTITLE B- REQUIREMENT FOR MANDATORY MANUAL AUDITS BY HAND COUNT
Section 603: Additional Voting System Requirements
In addition to the afore- mentioned requirements, states will also be required to adhere to:
- No noncertified election voting system technologies will be allowed to be used.
- Disclosure of technology and any information and technology to qualified persons which include; government entities, parties in litigation or other persons for research surrounding the accuracy and integrity of the systems.
- Requires non-disclosure agreements on election technologies developed by third party contractors
- “Election-dedicated voting system technology” is defined
- No wireless communications or internet is allowed to be used in any voting system for risk of fraud.
- EAC must provide the listed security standards for voting technologies (Preemption)
- Paper used for paper ballots must be durable and adhere to strict readability standards
- Poll tapes will be required to be published at the various polling sites and on line and any discrepancies between the poll tape and totals that are posted must be explained.
- Daily early, absentee, provisional vote counts and rejected ballots must be posted on a daily basis
- Certified tabulation observers must be appointed in each state
- Conflict of interest accreditation standards must be established by the EAC for laboratories that certify voting technologies
- Any payments to the laboratories are dependent on proof of accreditation
- $1,500,000 allocated to the National Science Foundation for more research on election-dedicated voting software
Section 604: Availability of Additional Funding to Enable States to Meet Costs of Revised Requirements
In order to help states comply with the Voter Empowerment Act, there will be appropriations in the form of grants available:
- $ 1,000,000,000 to be allocated to states to help them comply with Title III requirements and outlines the process for states to apply for the grants
- Allocation of the money to be determined by the number of noncompliant precincts in the state as well as the sum of the noncompliant precincts in all of the states
- Reimbursements for costs incurred years after 2004 if states are making a concerted effort to comply with all Title III requirements
Section 611: Mandatory Manual Audits
In order to safeguard the integrity of the election process, there will be audits conducted by state officials, at certain precincts throughout each state:
- There will be randomly selected precincts that will be required to hand count the voter-verified paper ballots
- There are no audits necessary for unopposed candidates or those who win an election with greater than 80% of the vote.
- Auditors must be certified by the United States Comptroller General
- In the event that the unofficial count shows that the margin between the candidates is less than 1%, hand counts of the voter-verified paper ballots will occur in at least 10 precincts in the congressional district involved
- If the margin is greater than or equal to 1% but less than 2%, hand counts will occur in at least 5% of precincts in the congressional district
- States will be allowed to use an alternative method for vote tabulation if the standards conform under the National Institute of Standards and Technology (NIST), the mechanism must be as effective as the afore mentioned ones in this subsection and must have a 95% on the NIST confidence interval.
- Specific process for conducting administrative audits
- Results must be published
- Results will not be certified until an audit is complete
- $100,000,000 appropriated to states to conduct the audits
- Some states that have automatic recounts under state law may be exempted from the audit provisions in this subsection
Section 612: Available Enforcement Under Help America Vote Act of 2002
Section 613: Guidance on Best Practices for Alternative Audit Mechanisms
The NIST will be appropriated $100,000 to establish guidance for alternative ways to conduct the audits of random precincts
Section 614: Clerical Amendment
TITLE VII- PROVISIONAL BALLOTS
Section 701: Requirements for Counting Provisional Ballots; Establishment of Uniform and Nondiscriminatory Standards
The following will be mandated of all states in terms of counting provisional ballots:
- Each ballot for any statewide election will be counted, no matter which polling place/precinct it was cast in.
- States must establish uniform and fair standards for the issuance and tabulation of all provisional ballots.
Section 801: Early Voting and Voting By Mail
TITLE VIII- EARLY VOTING AND VOTING BY MAIL
In terms of establishing requirements for those individuals who choose to vote early or by mail, states will be required to adhere to the following:
- Each state must allow individuals to vote no less than 15 days prior to a scheduled federal election and allow such voting to take place for no less than four hours per day.
- All early voting polling locations must be near public transportation hubs so the greatest number of people will have access to the polls.
- Requires an election commission to establish standards.
- If there is adequate notice provided by the states, they are allowed to deviate from the listed procedures in the event of unforeseen circumstances.
- There can be no additional conditions or requirements for voting by mail other than the deadline for returning the ballot.
- There must be a signature comparison of the voters to determine the validity of the ballots.
TITLE IX- ABSENT UNIFORMED SERVICES VOTERS AND OVERSEAS VOTERS
Section 901: Extending Guarantee of Residency for Voting Purposes to Family Members of Absent Military Personnel
Any spouse or family member of military personnel will be guaranteed residency for voting purposes in whatever state they end up in as a result of military or naval orders.
Section 902: Use of Single Absentee Ballot Application for Subsequent Elections
No later than 55 days before any scheduled general election for federal office, states will send a report to the EAC and Congress, that details how there will be absentee ballots available for uniformed service and overseas voters no later than 45 days before the election.
All states must send out a report 43 days before the election certifying that the ballots have been sent out as well as another report 90 days following the election detailing the number of ballots sent to military personnel and overseas voters.
Section 903: Enforcement
In order to ensure that states are creating the reports and adhering to the various regulations:
- The Attorney General is allowed to bring civil action for declaratory or injunctive relief
- The civil penalty for the first violation can be up to $110,000 and up to $220,000 for all future violations.
- Attorney General must submit a report to Congress on the number of actions brought.
- Private citizens may bring a civil action in the appropriate district court where the State can be the only defendant.
Section 904: Revisions to the 45-Day Absentee Ballot Transmission Rule
The following are the revisions to the 45-Day Absentee ballot transmission rule:
- If the state fails to meet the 45 day deadline, they will be required to send the absentee ballots via express delivery.
- States must provide for express delivery for ballot to be returned if sent fewer than 40 days prior to the election.
- 45 days prior to an election, or most recent weekday which proceeds the 45th day in case of weekend or public holiday.
Section 905: Use of Single Absentee Ballot Application for Subsequent Elections
States must send absentee ballots for each election after official post card form has been submitted, except for when voter notifies the state that they no longer wish to vote in the state or have registered in another state.
States also may not refuse applications for absentee ballots because they were sent prior to the first day they are accepted.
Section 906: Application of UOCVA to Commonwealth of Northern Mariana Islands
TITLE X- POLL WORKER RECRUITMENT AND TRAINING
Section 1001: Leave to Serve as a Poll Worker for Federal Employees
An employee of any executive agency is entitled, without loss of reduction to serve as a poll worker for up to 6 days. The Office of Personnel Management will formulate the regulations.
Section 1002: Grants to States for Poll Worker Recruitment and Training
If states will allow for new poll workers to be trained, there will be grants potentially available:
- EAC can make grants available for states for the training of non-partisan poll workers.
- Any potential grant recipients must use EAC forms.
- The size of the grant will be equal to the product of aggregate amount and proportion of voting age population of the state.
- State must submit reports 6 months following the training.
- EAC must submit a report to Congress a maximum of 1 year after the grant is made.
- Only 3 % of appropriations may be used for EAC to administer the programs.
Section 1003: Model Poll Worker Training Program
The EAC must develop a model poll worker training program including relevant federal law, access to voting for individuals with disabilities and any experience with voting machines.
TITLE XI- ENHANCEMENT OF ENFORCEMENT OF HELP AMERICA VOTE ACT OF 2002
Section 1101: Enhancement of Enforcement of Help American Vote Act of 2002
Any aggrieved person may file a written report describing their complaint with the state which following, the Attorney General will be required to contact the state election entity. If they wish to do so, any private citizen may bring a complaint against states in the appropriate district court against the state election entity. Any administrative remedies already in place will not be affected.
TITLE XII- FEDERAL ELECTION INTEGRITY
Section 1201: Prohibition on Campaign Activities by Chief State Election Officer
In order to protect the integrity of the elections process, the chief state election administration officials may not take part in any campaigns for federal office (serving on committees for candidates, use of authority to influence election outcome, contribute to candidate). The only exception that will be made is if a family member is the candidate.
TITLE XIII- OTHER ELECTION ADMINISTRATION IMPROVEMENTS
Section 1301: Treatment of Universities as Voter Registration Agencies
Under the bill, each accredited college and university is added to a list of voter registration agencies under the NRVA where students will be required to be registered upon enrolling at the school (Preemption).
Section 1302: Minimum Notification Requirements for Voters Affected by Polling Place Changes
State election officials must notify an individual no later than 7 days before an election that the location of their polling place has changed. The notification must also include the address of the alternate location, the hours of operation and whether or not identification is required.
Section 1303: Voter Information Hotline
The Attorney General must prepare a hotline which provides information on voting (registration assistance, location, hours of polling place and how to obtain absentee ballots). The hotline must let people report any problems with registration and instances of voter intimidation/suppression.
The hotline must be accessible to those with disabilities and to individuals who speak other languages.
There will be a task force established to provide ongoing analysis of the operation of the hotline (preference to civil rights organizations, no criminal offenses, term of 2 years without any compensation. The Attorney General must submit a report to Congress every odd numbered year about the effectiveness of the hotline and the task force charged with monitoring it.
At least 15% of appropriations must be used for making the voting public aware of the hotline.
Section 1304: Reauthorization of Election Assistance Commission
The EAC will be authorized for fiscal years 2012-2016.
Section 1305: Repeal of Exemption of Election Assistance Commission from Certain Government Contract Exemptions
The repeal will apply to contracts entered into contracts entered into by the EAC on or after the enactment of the Voter Empowerment Act.
Section 1306: No Effect on Other Laws
Except where it is specifically provided in the law, nothing in the Voter Empowerment Act will alter any other federal law dealing with elections (Voting Rights Act, MOVE Act, NRVA, Rehabilitation Act etc.) Nothing in the law shall be deemed to have an effect on the preclearance requirements of a state under section 5 of the Voting Rights Act of 1965.
Any issue that is not governed by any provision under the act is to be governed by applicable State or Federal law.
For more information, please contact:
Susan Parnas Frederick and Jennifer Arguinzoni
Prepared by Dan Wolf