Modernization of Voting
Senator Chris Dodd
Discusses IRV on Senate
On April 11, the Senate voted
99-1 to provide billions of dollars to states to modernize voting
equipment and to set certain national standards. That day, Sen.
Chris Dodd, the lead sponsor of the legislation, provided his
interpretation of a number of features of the bill. Here's what he
had to say about instant runoff voting:
"To further clarify the
purpose of over-vote clarification, there is no intent to have an
adverse impact on any jurisdiction with election administration
procedures for instant runoff or preferential voting. All
jurisdictions, including Alaska, California, Florida, Georgia, New
Mexico and Vermont are not prohibited from using such voting
procedures to conduct instant runoff or preferential under this
Sen. Dodd's remarks are very
encouraging, but the bill still falls short in ensuring that new
voting equipment will be able to support electoral system
alternatives already used in numerous American communities such as
cumulative voting and ranked- choice systems such as instant runoff
voting. Please ask your Member of Congress this sensible
requirement, with the basic message that "an ounce of prevention is
worth a pound of cure." See our Citizen's Guide
to Voting Equipment for more.
For more on the bill in general, please see the Constitution
Project's Election Reform Initiative for background information,
including a comparison of the House and Senate bills; the Leadership
Conference on Civil Rights for the views of the civil rights
community; and Electionline.org
for ongoing media coverage of election administration reform.
Following is an analysis by Electionline.org after the Senate
"Not ‘If’ But ‘When’: Election Reform and the H.R.
3295 Conference Committee."
By Doug Chapin
April 18, 2002
“If and when.”
That’s the phrase heard for
months about the chances of Congressional action on election reform.
However, last week’s 99-1 Senate vote likely moves election reform
away from “if” and much closer to “when” than ever before.
conference committee that will reportedly be named in the next few
weeks will have the difficult task of reconciling two bills
[technically, two versions of H.R. 3295] that, despite their
similarities, reflect very distinct approaches to federal election
How will it happen?
The answer lies not in comparing
the specifics of the House and Senate bills, but rather in a more
in-depth examination of how each bill addresses the key questions
underlying the whole notion of federal election reform.
What resources is the federal
government prepared to commit to state and local governments for
What will the federal
government expect from state and local governments in return for
its investment in election reform?
Who at the federal level will
administer and enforce the new law and how?
presuming to predict how the conference committee will resolve these
issues – an amusing but usually futile exercise – the following
analysis will use these questions as a framework for a discussion of
what the H.R. 3295 conference is likely to consider in moving
election reform from “if” to “when.”
What resources is the
federal government prepared to commit to state and local governments
for election reform?
This is the one area on which both the House and
Senate bills are in near-total agreement. Given the totals contained
in both bills, the House and Senate each contemplate a multi-year,
multi-billion dollar commitment to state and local election reform.
Consequently, state and local governments can expect a major
infusion of federal funds for election administration as part of the
conference committee’s report.
There are key differences, however.
First, the House bill – unlike the Senate bill – incorporates a
required state match as a precondition of receiving most federal
funds. The provision creates an incentive for states to work
actively for reform rather than passively accept federal money.
Moreover, the match reduces the overall federal commitment – indeed,
once the required state funds are added to the figures in the House
bill, the overall price difference with the Senate bill is virtually
eliminated. On the other hand, a matching requirement places a
financial burden on states that some may be unable to shoulder
during a time of general economic downturn.
Second, the Senate and
House are far apart on how exactly to allocate funds for election
reform. The House bill distributes the money using a formula based
upon voting age population, while the Senate does it via a
competitive grant process. Each approach has its merits: a
formula-based program is easier and faster to administer, while a
grant-based approach accounts for jurisdiction-specific variations
in costs and need for reform.
More significant than the formula vs.
grant question, however, is the Senate bill’s provision for grants
to local as well as state governments. No such equivalent exists in
the House bill. The formula approach would appear to favor states,
as it allows them to allocate funds to meet local needs, while the
competitive grant system would provide an opportunity for localities
to fund their own improvements without assistance from the state
There is also the question of how federal election
reform funding may be used. The House bill generally provides for
block grant-style funding, while the Senate bill generally targets
its funds for those purposes directly addressed in its bill. [There
are exceptions, of course; for example, the House allocates $400
million for a one-time buyout of punch card voting machines – money
that is not available for other purposes.]
Resolving each of these
issues will require the conference committee to decide the proper
role of federal, state and local governments in election reform.
Specifically, conferees will have to decide if Congress wants states
to commit time and money to election reform – even if this means
that some will be hard-pressed to make the commitment because of
tight budgets. In addition, conferees will have to determine whether
localities’ election reform needs are sufficiently distinct to
justify direct financial assistance from the federal government.
Finally, the conference will have to decide whether states and/or
localities may exercise discretion in spending their federal
election reform dollars or whether the federal government may limit
such discretion as a condition of providing funds.
What will the federal
government expect from state and local governments in return for its
investment in election reform?
From the beginning of the
election reform debate, state and local election officials – who
have benefited from the absence of federal supervision even as they
labored under the absence of federal funds – have worried aloud
about what Washington would expect of them as a condition of federal
support for election reform. There was fear of federal strings and
opposition to federal mandates – all shorthand for unease about how
federal reform legislation would alter the balance of responsibility
and authority for elections across America.
The House and Senate
bills that have emerged have done little to resolve the debate. Both
bills do create federal requirements in numerous areas, including
provisional voting, statewide registration databases, and access for
disabled voters; however, their approaches to achieving these
requirements differ significantly. The House bill generally keeps
the federal government out of the specifics of election reform —
requiring states and localities to meet certain minimum standards
but leaving the details of how to do so in the hands of state and
local election officials. The Senate bill, on the other hand, is
quite specific – setting forth not just what must be done on
election reform but how.
Nowhere is this divide clearer than on the
issue of voter identification. The House bill is silent on voter ID,
while its Senate counterpart is thoroughly detailed on who must show
identification and what identification is acceptable – complete with
an itemized listing of cards, bills and other documents that certain
voters must bring with them to the polls as a condition of being
allowed to vote.
Although the difference between the House and
Senate is easily explained, it is not easily resolved. Indeed, one
of the conferees’ most difficult tasks (if not the most difficult
task) will be to reconcile the divide between the House standards
and the Senate requirements in a manner acceptable to both sides.
Specifically, on each standard/requirement contained in any eventual
agreement, the conference committee will have to balance state and
local governments’ interest in flexibility with the federal
government’s interest in accountability. In the interest of
compromise, conferees could vary this balance from issue to issue,
with more stringent requirements in some areas than in others.
However it is resolved, though, the struggle over the proper role of
the federal government as a consequence of federal funding will
Who at the federal level
will administer and enforce the new law and how?
Lurking beneath the surface of
higher-profile disagreements about the content of election reform
legislation is a fundamental split on who in Washington, D.C. will
be responsible for monitoring election reform activity at the state
and local level. This split, still largely an “inside the Beltway”
issue, could have wide repercussions for the pace and success of
election reform across the country. The split exists in two areas:
the role of the U.S. Justice Department (DOJ) and the structure of
the new federal agency to be created as a result of H.R. 3295.
likely flashpoint in the conference committee will be DOJ’s role in
the nation’s new election administration regime. The House bill
allocates DOJ a purely enforcement role, while the Senate bill goes
much further, giving the Department the authority to administer the
new law as well – at least until the new agency created by the bill
is established. The goal is to allow election reform to move forward
without waiting for a new agency, but at the cost of placing DOJ –
not always popular with the state and local governments who will
become the regulated community – in charge (even temporarily) of
election reform. Conferees will have to decide whether the interest
in speed, now arguably moot because of the proximity of the 2002
elections, trumps the difficulties in making DOJ both regulator and
enforcer under the new law.
The other issue will be the structure
of the new agency. Both the House’s Election Assistance Commission
and the Senate’s Election Administration Commission (happily sharing
the acronym EAC) will be responsible for administering the federal
law and allocating federal dollars for election reform. However, the
EAC’s structure is strikingly different under the two bills. Under
the House bill, the EAC is led by four part-time commissioners
advised by two permanent advisory boards composed of nearly two
hundred federal, state and local officials. Under the Senate bill,
the EAC is led by four full-time commissioners and contains no
counterpart to the House’s permanent advisory boards.
structures mirror the relatively hands-off nature of the House bill
vs. the more hands-on approach in the Senate bill. To that extent,
the eventual decision about how to structure and advise the EAC will
turn on resolution of the other issues discussed above. Of course,
the result may not be what is expected; conferees may wish to have a
stronger Senate-style EAC even if they do not impose specific
requirements on states and localities, in order to make sure that
local election officials are following through properly on the
exercise of their discretion. Likewise, a weaker House-style EAC
could be appropriate with more specific Senate requirements, given
the general lack of discretion afforded officials elsewhere in the