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108th Congress Rept. 108-404
HOUSE OF REPRESENTATIVES
1st Session Part 1
CONTINUITY IN REPRESENTATION ACT OF 2003
December 8, 2003.--Ordered to be printed
Mr. Ney, from the Committee on House Administration, submitted the
R E P O R T
[To accompany H.R. 2844]
[Including cost estimate of the Congressional Budget Office]
The Committee on House Administration, to whom was referred
the bill (H.R. 2844) to require States to hold special
elections to fill vacancies in the House of Representatives not
later than 21 days after the vacancy is announced by the
Speaker of the House of Representatives in extraordinary
circumstances, and for other purposes, having considered the
same, report favorably thereon with amendments and recommend
that the bill as amended do pass.
The amendments are as follows:
Strike all after the enacting clause and insert the
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Continuity in Representation Act of
SEC. 2. REQUIRING SPECIAL ELECTIONS TO BE HELD TO FILL VACANCIES IN
HOUSE IN EXTRAORDINARY CIRCUMSTANCES.
Section 26 of the Revised Statutes of the United States (2 U.S.C. 8)
(1) by striking ``The time'' and inserting ``(a) In
General.--Except as provided in subsection (b), the time''; and
(2) by adding at the end the following new subsection:
``(b) Special Rules in Extraordinary Circumstances.--
``(1) In general.--In extraordinary circumstances, the
executive authority of any State in which a vacancy exists in
its representation in the House of Representatives shall issue
a writ of election to fill such vacancy by special election.
``(2) Timing of special election.--A special election held
under this subsection to fill a vacancy shall take place not
later than 45 days after the Speaker of the House of
Representatives announces that the vacancy exists, unless a
regularly scheduled general election for the office involved is
to be held at any time during the 75-day period which begins on
the date of the announcement of the vacancy.
``(3) Nominations by parties.--If a special election is to be
held under this subsection, not later than 10 days after the
Speaker announces that the vacancy exists, the political
parties of the State that are authorized to nominate candidates
by State law may each nominate one candidate to run in the
``(4) Extraordinary circumstances.--
``(A) In general.--In this subsection, `extraordinary
circumstances' occur when the Speaker of the House of
Representatives announces that vacancies in the
representation from the States in the House exceed 100.
``(B) Judicial review.--If any action is brought for
declaratory or injunctive relief to challenge an
announcement made under subparagraph (A), the following
rules shall apply:
``(i) Not later than 2 days after the
announcement, the action shall be filed in the
United States District Court having
jurisdiction in the district of the Member of
the House of Representatives whose seat has
been announced to be vacant and shall be heard
by a 3-judge court convened pursuant to section
2284 of title 28, United States Code.
``(ii) A copy of the complaint shall be
delivered promptly to the Clerk of the House of
``(iii) A final decision in the action shall
be made within 3 days of the filing of such
action and shall not be reviewable.
``(iv) The executive authority of the State
that contains the district of the Member of the
House of Representatives whose seat has been
announced to be vacant shall have the right to
intervene either in support of or opposition to
the position of a party to the case regarding
the announcement of such vacancy.''.
Amend the title so as to read:
A bill to require States to hold special elections to fill
vacancies in the House of Representatives not later than 45 days after
the vacancy is announced by the Speaker of the House of Representatives
in extraordinary circumstances, and for other purposes.
Purpose of the Legislation
H.R. 2844, the Continuity in Representation Act of 2003,
establishes a framework for conducting expedited special
elections to fill House vacancies resulting from a catastrophic
terrorist attack or other extraordinary circumstances. The
purpose of H.R. 2844 is to ensure that a functioning House of
Representatives would be in place with the ability to operate
with legitimacy in the wake of a potential catastrophic
Ever since the terrible and fateful morning of September
11, 2001, the American people have become painfully aware of
the destructive intent of our country's terrorist enemies as
well as the increasingly sophisticated and devastating methods
by which they carry out their deadly work. The possibility that
terrorists could detonate a nuclear, chemical, or biological
weapon of mass destruction in our Nation's capital--
annihilating major portions of our federal government and
potentially killing dozens or hundreds of Members of Congress--
is one that we cannot ignore and is the reason why the
Committee seeks to move the process forward by reporting this
In favorably reporting H.R. 2844, the Committee takes no
position on any proposed constitutional amendments that would
provide for the appointment of temporary replacements to fill
vacant House seats because amendments to the Constitution are
outside the Committee's jurisdiction.
Summary of the Legislation
H.R. 2844, as amended, provides for expedited special
elections to be held in ``extraordinary circumstances.''
Specifically, this legislation requires that within 45 days of
the Speaker of the House of Representatives announcing that
more than 100 vacancies exist in the membership of the House,
the executive authority of a State in which a House vacancy
exists shall hold a special election to fill such vacancy.
The original version of H.R. 2844 contained a 21-day
timeframe for holding a special election after the announcement
of extraordinary circumstances. Increasing this time period to
45 days was deemed necessary to accommodate the concerns of
many election officials who felt that 21 days was too short and
may not have allowed for adequate preparation. The majority
opinion of election officials appears to be that 45 days would
provide sufficient time to plan and prepare for an expedited
Under H.R. 2844, as amended, each political party
authorized by state law to nominate candidates would have up to
10 days following the Speaker's announcement to nominate a
candidate to run in the special election. The time period for
party nominations in the original version of H.R. 2844 was 14
days. The shortened party nomination period would provide
additional time on the backend for election officials to print
ballots, test election systems, recruit and train poll workers,
etc., while still permitting party officials adequate time to
make candidate nominations.
H.R. 2844, as amended, also provides that if a state is
scheduled to hold a general election within 75 days of the
Speaker's announcement of more than 100 vacancies, that state
would not be required to schedule an expedited special
election, thus in essence, affording a 30-day extension to such
states. The original version of H.R. 2844 provided a similar
30-day extension--from 21 to 51 days--for states whose election
machinery was already in motion.
Any legal action challenging the announcement of more than
100 vacancies made by the Speaker would have to be filed within
two (2) days of the announcement in the United State District
Court having jurisdiction over the congressional district whose
seat has been declared to be vacant. Such a challenge would be
heard by a three-judge panel convened pursuant to 28 U.S.C.
Sec. 2284, and a copy of the complaint would need to be
delivered to the Clerk of the House of Representatives. The
executive authority of the relevant state would have the right
to intervene either in support of or opposition to the
challenge. A final decision by the panel would be required to
be issued within three (3) days of the filing and would not be
H.R. 2844, as amended, deletes a provision in the original
version of the bill that stated that the Speaker's announcement
could not be appealed. After discussing this matter with the
House Parliamentarian, it was determined that this provision
was unnecessary since it would be duplicative of current House
rules. So to avoid any needless confusion, the provision was
taken out by the amendment.
Committee Consideration of the Legislation
INTRODUCTION AND REFERRAL
On July 24, 2003, Mr. Sensenbrenner, Mr. Dreier, Mrs.
Miller, Mr. Cole, Mr. Chabot, and Mr. Paul introduced H.R.
2844,\1\ which was referred to the Committee on House
\1\ Mr. Conyers signed on as a co-sponsor on September 10, 2003.
Mr. Bartlett did the same on October 7, 2003.
The Committee on House Administration held one hearing on
the issue of the continuity of the House of Representatives in
the event of a catastrophic terrorist attack or other
On September 24, 2003, the Committee held its hearing on
Members present: Mr. Ney, Mr. Ehlers, Mr. Linder, Mr.
Larson, Mr. Brady.
Witnesses: The Honorable James Sensenbrenner, Chairman,
Committee on the Judiciary; The Honorable David Dreier,
Chairman, Committee on Rules; The HonorableMartin Frost,
Ranking Democratic Member, Committee on Rules; The Honorable Brian
Baird, Member of Congress; the Honorable Candice Miller, Member of
Congress; The Honorable Mary Kiffmeyer, the Minnesota Secretary of
State; R. Doug Lewis, Executive Director, Election Center; Donald R.
Wolfensberger, Director, Congress Project, Woodrow Wilson International
Center for Scholars; Thomas E. Mann, W. Averell Harriman Chair and
Senior Fellow in Governance Studies, Brookings Institution; Norman
Ornstein, Resident Scholar, American Enterprise Institute.
On Wednesday, November 19, 2003, the Committee met to mark
up H.R. 2844. The Committee favorably reported H.R. 2844, as
amended, by a record vote (4-3), a quorum being present.
Matters Required Under the Rules of the House
COMMITTEE RECORD VOTES
Clause 3(b) of House rule XIII requires the results of each
record vote on an amendment or motion to report, together with
the names of those voting for and against, to be printed in the
Amendment in the nature of a substitute
Offered by Mr. Ney. The first vote during the markup came
on the amendment in the nature of a substitute offered by Mr.
The amendment altered the original version's timeframes for
conducting expedited special elections and deleted an
The vote on the amendment was 4-3 and the amendment was
Member Yes No Present
Mr. Ney....................... X ............ ............
Mr. Ehlers.................... X ............ ............
Mr. Mica...................... X ............ ............
Mr. Linder.................... X ............ ............
Mr. Larson.................... ............ X ............
Ms. Millender-McDonald........ ............ X ............
Mr. Brady..................... ............ X ............
Total................... 4 3 ............
The Committee then voted to report H.R. 2844 favorably, as
amended. The vote to report favorably was approved by recorded
Member Yes No Present
Mr. Ney....................... X ............ ............
Mr. Ehlers.................... X ............ ............
Mr. Mica...................... X ............ ............
Mr. Linder.................... X ............ ............
Mr. Larson.................... ............ X ............
Ms. Millender-McDonald........ ............ X ............
Mr. Brady..................... ............ X ............
Total................... 4 3 ............
Committee Oversight Findings
In compliance with clause 3(c)(1) rule XIII of the Rules of
the House of Representatives, the Committee states that the
findings and recommendations of the Committee, based on
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.
General Performance Goals and Objectives
The Committee states, with respect to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, that
the goal and objective of H.R. 2844 is to ensure that a
functioning House of Representatives would be in place with the
ability to operate with legitimacy in the wake of a
catastrophic terrorist attack or other extraordinary
In compliance with clause 3(d)(1) of rule XIII, the
Committee states that Article 1, Section 4 of the U.S.
Constitution grants Congress the authority to make laws
governing the time, place and manner of holding Federal
The Committee states, with respect to section 423 of the
Congressional Budget Act of 1974, that the bill does not
include any significant Federal mandate.
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. The Committee states that H.R. 2844 preempts
state and local laws regarding the timing ofholding special
elections to fill vacancies in the House of Representatives in the
event of extraordinary circumstances, unless such state and local laws
otherwise are compliant or otherwise consistent with the timeframes for
holding expedited special elections set forth in H.R. 2844.
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:
Congressional Budget Office,
Washington, DC, December 1, 2003.
Hon. Robert W. Ney,
Chairman, Committee on House Administration,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2844, the
Continuity in Representation Act of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sarah Puro.
Elizabeth M. Robinson,
(For Douglas Holtz-Eakin, Director).
H.R. 2844--Continuity in Representation Act of 2003
Summary: H.R. 2844 would provide for the continuity of the
House of Representatives if the Speaker of the House announced
that there were ``extraordinary circumstances''--effectively
100 or more vacancies in the House of Representatives. The bill
would require states to hold special elections to fill
vacancies in the House of Representatives within 45 days of
such an announcement. The bill also would provide for judicial
review of challenges to the announcement of extraordinary
circumstances. CBO estimates that enacting H.R. 2844 would have
no significant impact on the federal budget.
By requiring states to hold elections within 45 days of an
announcement of ``extraordinary circumstances,'' H.R. 2844
contains an intergovernmental mandate as defined in the
Unfunded Mandates Reform Act (UMRA). CBO estimates that the
costs of that mandate over the next five years would not exceed
the threshold established in that act ($60 million in 2004,
adjusted annually for inflation).
H.R. 2844 contains no new private-sector mandates as
defined in UMRA.
Estimated cost to the Federal Government: CBO estimates
that enacting H.R. 2844 would have no significant impact on the
federal budget over the next several years. Although the bill
could affect the timing and amounts spent on Members' salaries
(which are classified as mandatory) and office expenses (which
are subject to appropriation), CBO expects that any such impact
is unlikely to occur and would be minor in any event.
Intergovernmental mandates contained in the bill: H.R. 2844
would require States to hold elections within 45 days after an
announcement by the Speaker of the House that there are
``extraordinary circumstances''--effectively 100 or more
vacancies in the House of Representatives--unless a regularly
scheduled general election would occur within 75 days. This
intergovernmental mandate would require 40 states to adopt a
quicker time frame than they currently have for holding general
elections in the event of a vacancy that does not coincide with
a regularly scheduled election, and some states would need to
amend their state constitutions. Further, the bill would likely
prohibit states from holding primaries--as required by law in
some states--for two reasons. First, the short time frame for
the general election would logistically prohibit the holding of
a primary, and second, political parties would be required to
furnish a candidate within 10 days of the announcement of
Estimated direct costs of the mandates to state and local
governments: Based on information from state and local election
professionals, CBO estimates that the cost to run a special
election ranges from $200,000 to $500,000 per district (in 2004
dollars), depending on the circumstances and location of the
special election, the total number of special elections being
held nationwide, and other factors. In the absence of the bill,
states would hold elections and fill vacancies, but CBO
estimates that the new requirements and short time frame
required by the bill would likely generate significant
additional costs for states. However, the likelihood is small
that, over the next five years, events would occur triggering
the provisions in H.R. 2844. Even if such an event were to
occur, the additional costs for special elections may not
exceed the threshold established in UMRA ($60 million in 2004,
adjusted annually for inflation).
Estimated impact on the private sector: H.R. 2844 contains
no new private-sector mandates as defined in UMRA.
Estimate prepared by: Impact on State, Local, and Tribal
Governments: Sarah Puro; Federal Costs: Deborah Reis; and
Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget and Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 26 OF THE REVISED STATUTES OF THE UNITED STATES
Sec. 26. [The time] (a) In General.--Except as provided in
subsection (b), the time for holding elections in any State,
District, or Territory for a Representative or Delegate to fill
a vacancy, whether such vacancy is caused by a failure to elect
at the time prescribed by law, or by the death, resignation, or
incapacity of a person elected, may be prescribed by the laws
of the several States and Territories respectively.
(b) Special Rules in Extraordinary Circumstances.--
(1) In general.--In extraordinary circumstances, the
executive authority of any State in which a vacancy
exists in its representation in the House of
Representatives shall issue a writ of election to fill
such vacancy by special election.
(2) Timing of special election.--A special election
held under this subsection to fill a vacancy shall take
place not later than 45 days after the Speaker of the
House of Representatives announces that the vacancy
exists, unless a regularly scheduled general election
for the office involved is to be held at any time
during the 75-day period which begins on the date of
the announcement of the vacancy.
(3) Nominations by parties.--If a special election is
to be held under this subsection, not later than 10
days after the Speaker announces that the vacancy
exists, the political parties of the State that are
authorized to nominate candidates by State law may each
nominate one candidate to run in the election.
(4) Extraordinary circumstances.--
(A) In general.--In this subsection,
``extraordinary circumstances'' occur when the
Speaker of the House of Representatives
announces that vacancies in the representation
from the States in the House exceed 100.
(B) Judicial review.--If any action is
brought for declaratory or injunctive relief to
challenge an announcement made under
subparagraph (A), the following rules shall
(i) Not later than 2 days after the
announcement, the action shall be filed
in the United States District Court
having jurisdiction in the district of
the Member of the House of
Representatives whose seat has been
announced to be vacant and shall be
heard by a 3-judge court convened
pursuant to section 2284 of title 28,
United States Code.
(ii) A copy of the complaint shall be
delivered promptly to the Clerk of the
House of Representatives.
(iii) A final decision in the action
shall be made within 3 days of the
filing of such action and shall not be
(iv) The executive authority of the
State that contains the district of the
Member of the House of Representatives
whose seat has been announced to be
vacant shall have the right to
intervene either in support of or
opposition to the position of a party
to the case regarding the announcement
of such vacancy.
House of Representatives,
Committee on House Administration,
Washington DC, December 8, 2003.
On November 19, 2003, the House Administration Committee
convened and favorably reported H.R. 2844, the Continuity in
Representation Act of 2003. Attached, you will find the
Majority and Minority views for submission into the
Bob Ney, Chairman.
MINORITY VIEWS OF JOHN B. LARSON OF CONNECTICUT, JUANITA MILLENDER-
McDONALD OF CALIFORNIA AND ROBERT A. BRADY OF PENNSYLVANIA
The House Administration Committee ordered H.R. 2844
reported on a 4-3 vote with virtually no substantive
explanation offered by the Majority, either at the markup or in
the committee report, about what the bill actually does or why
it is needed. In our view, H.R. 2844 would more likely result
in additional disruption and confusion, rather than
improvement, in the way states conduct special elections. The
bill also does not address other significant issues relating to
the continuity of Congress, some of which are not within the
jurisdiction of our committee, which suggests the need for a
multi-track approach to the entire range of issues and the
coordination of such an effort by the leadership of Congress.
H.R. 2844 would exercise Congress' powers under Article I,
Section 4, Clause 1 of the Constitution to alter existing state
laws which set the ``Times, Places and Manner'' of elections to
the House of Representatives to change the way special
elections to fill vacancies are conducted nationwide. The
bill's provisions would take effect only under ``extraordinary
circumstances'', which is defined by the legislation as being
at any time after the Speaker of the House announces that the
number of vacancies in the body exceeds 100.
Ostensibly, by shortening the time frame for the conduct of
such elections to a maximum of 45 days after a vacancy is
declared, the sponsors claim that the legislation would bring
the House back to full strength following a catastrophe more
rapidly than if existing state laws, which vary widely, were
Unfortunately, H.R. 2844 has serious conceptual and
substantive flaws. It also ignores many of the major issues
affecting continuity of the Congress which must be addressed if
our democratic system is to continue to function in the
aftermath of a future crisis. Indeed, there is concern that
moving this bill at this time is intended to preempt
consideration of other proposals which deserve a significant
debate in Congress, such as constitutional amendments. Members
may not agree with some or all of these proposals, and they are
far more difficult to craft than the slipshod process which
produced H.R. 2844, but they are worthy of continued
The provisions of H.R. 2844 are excessively vague, even as
it preempts laws in all 50 states which may conflict with its
stated purpose. The Committee has not established a record or
collected data on what these state laws might be, or of what
the effects of preemption might be. The bill could also
interfere with the operation of existing Federal laws which
guarantee absentee voting rights, and conflict with previous
court decisions and consent decrees on these subjects. None of
these problems have been examined by the House Administration
For example, if the bill is enacted, it is unclear if
states can still use their existing laws to conduct special
elections. According to the committee report, they may not ``*
* * unless such state and local laws otherwise are compliant or
otherwise consistent with the timeframes for holding expedited
special elections set forth in H.R. 2844''. This is a
formulation tailor-made for confusion and litigation at a time
of national crisis. States may be required to change laws which
conflict with the bill's objectives. Would the states do this?
The bill provides no incentives for such state action until
after a crisis has begun, when it might be too late to bring
the states' election structures into timely compliance.
If the states do change conflicting laws, it is unclear
whether the bill's provisions can secure the nomination and
election of candidates within the specified 45-day timeframe.
Enactment of this bill might leave states with no way to fill
House vacancies at a time when the nation faces potentially
dire conditions disrupting the functions of government.
The bill also would not provide any remedy for
circumstances involving congressional disability, which could
leave the House, under certain adverse conditions, without a
quorum for 45 days or more. Without a functioning House, the
entire legislative process in Congress would be paralyzed. The
House could, theoretically, function with a small ``rump'' of
Members as long as a majority quorum of those who might be
``chosen, living and sworn'' at any particular point in time
could assemble, but such a situation would be undesirable
because the new entity would likely be unrepresentative--
geographically, politically and ideologically--compared to a
Any circumstances involving the Senate in the aftermath of
a catastrophe are not addressed by this bill. The Senate does
not have the problem the House does in reconstituting itself
because the 17th Amendment to the Constitution allows state
legislatures to empower governors to make temporary
appointments ``* * * until the people fill the vacancies as the
legislature may direct'', and nearly all states allow the
governor such authority.
However, like the House, the Senate lacks any mechanism to
deal with the replacement of its disabled members, and the
disability of a substantial number of representatives and
senators under certain conditions could threaten the existence
of a quorum in one or both chambers. The issue of disability in
the House and Senate probably requires a constitutional
amendment to address, an issue of major controversy in the
conflux of ``continuity'' issues, but one not within the
jurisdiction of the House Administration Committee.
In sum, H.R. 2844 sets impractical deadlines, ignores the
constitutional rights of candidates to run for election and of
voters to participate in elections, and would likely create
confusion in the aftermath of a national catastrophe when the
country needs the stability of established constitutional
processes and the legitimacy of the rule of law.
The bill essentially creates a procedure that may be little
more than a shell, calls it a ``special election'', and leaves
states to address the confusion it creates in its wake.
CONTINUITY OF CONGRESS
The bill's narrow focus ignores broader questions of
congressional continuity, such as whether it might be possible
to make the House operational again in a period of days--rather
than months--to respond to the requirements for emergency
legislation, congressional oversight and consultation with the
executive branch in the immediate aftermath of a catastrophe.
The American people must be able to count on a functioning
Congress in the wake of a catastrophic event. Two days after 9/
11, Congress passed legislation expediting benefits for public
safety officers killed or injured in the line of duty. Three
days after 9/11, Congress appropriated $40 billion in emergency
funds and approved legislation supporting the use of military
force. A week later, Congress enacted important legislation
affecting our economy and securing the air transport system,
and compensating the victims of the 9/11 attacks. Had events
unfolded differently, none of this legislation might have been
enacted in a timelyfashion. Or the President might have usurped
constitutional powers of Congress, hoping for subsequent ratification
of his actions.
As noted, the bill does not address the problem of disabled
Members of Congress. And while it appears to set specific
timetables for the conduct of special elections, the bill
actually would require states to hold elections within 45 days
irrespective of the practical mechanics of conducting them. It
would also ignore requirements, derived from Federal and state
law and upheld in court decisions, to allow candidates to
qualify for the ballot, and to allow voters to be able to
participate in the election.
RUSH TO JUDGMENT
The normal process a committee follows in considering
whether to report a bill to the House is to hear testimony from
witnesses, study the bill, draft appropriate amendments or a
new bill, and debate the substance of the legislation at a
Regrettably, only the first step was followed in the case
of H.R. 2844. The committee held a hearing on September 24,
2003, which thoroughly analyzed issues of congressional
continuity, including the possible consideration of
constitutional amendments, which are not within the
jurisdiction of our committee. The hearing revealed the
complications which might result from altering election
procedures in each of the states without first obtaining a
thorough working knowledge of how they operated in practice.
Even as they were voting to favorably report the bill from
the Committee on House Administration on November 19, 2003, it
was apparent from the debate that the Majority members didn't
understand how special elections conducted pursuant to H.R.
2844 would work. That alone is more than sufficient reason for
the House to reject this bill as premature, but there are
plenty of additional reasons which we will discuss further.
Why, then, did the Committee proceed to report it
favorably? We believe there are two reasons:
First, pressure from the Republican leadership and
senior committee chairs intent on dampening momentum
for other types of proposals which attempt to grapple
more comprehensively with the problem of how to
reconstitute the House of Representatives following a
catastrophe, such as a constitutional amendment which
might permit temporary appointments to be made to
replenish the House; and
Second, a reluctance to face the prospect of mass
Congressional casualties. The reason the issue of
congressional continuity has not yet reached critical
mass is that Members are reluctant to confront the
prospect of their own mortality, and to deal with the
unpleasant mechanics and technical details of their own
demise or potential incapacity. Unfortunately, our
adversaries are constantly thinking about just such
things, as we saw on September 11. We must demonstrate
Confronted with questions about our own mortality, denial
is a natural reaction. Unfortunately, for legislators elected
to find solutions to problems, it is not an acceptable one.
Even the nonpartisan Congressional Budget Office has taken
a ``head in the sand'' approach to the economic analysis of
this bill, noting in its cost estimate accompanying this report
that ``* * * the likelihood is small that, over the next five
years, events would occur triggering the provisions of H.R.
2844.'' After the events of September 11, 2001, no one can make
such an assumption.
We want to stress that our concerns with this bill are not
partisan. It is simply a poorly written piece of legislation.
Congressional continuity is not a partisan issue. No party
gains an advantage when hundreds of Members may be dead,
incapacitated, or confined to hospitals or burn wards.
There are Members of differing views on all sides of all
aspects of these issues. If constitutional amendments and other
relevant legislation were considered on the House floor in a
carefully structured manner, Members might be treated to an
extraordinary debate about the organization of our government
and the role of the House. Unfortunately, this bill's
supporters are using it as a way to shunt aside the major
issues, while pretending to take action.
We do not oppose the idea of Federal legislation expediting
House special election processes in the states, or encouraging
the states to do so themselves. On the contrary, we encourage
constructive action at both levels of government and believe
that debate in the states, and in individual congressional
districts, should be encouraged by Members through public
forums, newsletters and other means. However, rushing through a
bad bill without consulting with the states will not yield
Members who may support constitutional amendments are
taking widely varying approaches. Representative Larson of
Connecticut plans to introduce a constitutional amendment which
would allow state legislatures or, if they fail to act, state
governors, to appoint temporary members to serve until special
elections are held. Representative Baird of Washington has
introduced H.J. Res. 77, which would allow Members to leave
lists of potential successors with state governors to choose
temporary replacements. Senator Cornyn of Texas has introduced
S.J. Res. 23, a constitutional amendment, and S. 1820,
hypothetical enacting legislation derived from the amendment,
which would define a number of possible methods for temporarily
filling House seats, leaving it to individual states to decide.
Any such proposals, if considered in the House, would fall
under the jurisdiction of the House Judiciary Committee. The
Judiciary Subcommittee on the Constitution held a hearing on
February 28, 2002, but Representative Sensenbrenner, chairman
of the full Judiciary Committee, informed the House
Administration Committee during testimony at our hearing that
there would be no further consideration of such proposals in
the 108th Congress by his committee.
It is most unfortunate that the Judiciary Committee
chairman is shutting off debate on the most serious form of
legislation--constitutional amendments--in his own committee,
while promoting a defective alternative in ours. But closing
and locking the Judiciary Committee door does not excuse action
in haste by the House Administration Committee.
PROVISIONS OF THE BILL
H.R. 2844, as originally introduced, called for special
House elections around the nation to be held within 21 days of
a catastrophe. But this figure was so unrealistically truncated
that, during the House Administration Committee's hearing, the
sponsor backed away from it. H.R. 2844, as ordered reported,
was amended by a substitute presented to the Majority by
Representative Sensenbrenner, and then adopted as a committee
amendment, which would require states which had vacancies in
one or more of their seats in the House of Representatives to
fill the seats within 45 days, under specified criteria, if at
any time the number of House vacancies nationwide exceeded 100.
While 45 days is at least an improvement over the 21 days
originally proposed in H.R. 2844 as introduced, the substitute
was apparently crafted based on one line in the testimony at
our hearing of Mr. Doug Lewis, executive director of the
Election Center, in which he summarized the views of state
elections administrators polled by his organization:
While the responses indicated a variety of dates
ranging from the shortest time * * * of 35 days (after
determination of who the candidates will be) to a
period of four months, it appears that elections
administrators feel they can conduct an election with
as few as 45 days. However, the election officials
would be far more confident that the interests of
democracy would be best served by having up to 60 days
to get the elections organized and held. Each
additional day beyond the 45-day minimum time frame
creates greater confidence in the process. (Page 3 of
testimony of R. Doug Lewis, Executive Director of the
Election Center, before the Committee on House
Mr. Lewis has not endorsed H.R. 2844.
The bill would also allow political parties in the states
which are ``authorized to nominate candidates'' to select
candidates within a 10-day period from the time a vacancy has
been declared. It would effectively ban party primaries due to
the short timeframe. The bill makes no provision for what
happens if the parties do not select candidates in this manner,
or do so after the 10-day period has elapsed. Perhaps the
states are expected to fill in the blanks, because the bill
does not. The bill also makes no reference to minor parties and
independent candidates, who must be allowed a means to attempt
to qualify for the ballot under existing laws.
According to the Continuity of Government Commission of the
Brookings Institution and the American Enterprise Institute,
the average time to fill vacant House seats was 126 days
between the 99th and 107th Congresses.\1\ Some states do not
hold special elections at all if, for example, vacancies occur
at a certain threshold prior to the regular general election in
even-numbered years. Others manage to conduct such elections
with extraordinary speed--even more rapidly than envisioned by
H.R. 2844--but we must be mindful of the fact that while such
elections have passed muster and been accepted as legitimate by
voters in those states, in others they would be regarded as an
attempt to reduce voter and candidate participation in the
process and be considered undemocratic. And they may improperly
result in the exclusion or diminution of participation by
absentee voters and Americans stationed or living abroad.
\1\ Preserving Our Institutions: The First Report of the Continuity
of Government Commission, May, 2003, p. 7.
Congress should not rush to disregard the established
political values of the states without a far more careful
examination than was accorded to H.R. 2844.
In Minnesota, for example, only 29 days elapsed between the
resignation of Representative Bob Bergland (D) on January 24,
1977, and the election of his successor, Representative Arlan
Stangeland (R), on February 22, 1977. The state also managed to
hold a primary election in between these dates on February 8,
1977. However, these were unique circumstances. Representative
Bergland was President-elect Carter's nominee for Secretary of
Agriculture, so it was known well in advance of the actual
vacancy that he would be leaving the House of Representatives
and triggering a special election, giving potential candidates
and the district's election officials time to prepare; and
Minnesota allows same-day voter registration, which permits
voters to respond quickly to the special election process.
More typical are the circumstances which elected three
Members of this committee in special elections.
The seat won by Representative Ehlers of Michigan became
vacant on July 31, 1993, he won a Republican primary on
November 2, and a special election on December 7. There were
129 days between the time of the vacancy and the time of the
election, and it included a primary election.
The seat won by Representative Millender-McDonald of
California became vacant on December 15, 1995; she won an
unusual primary election on March 26, 1996, which also doubled
as the final special election since all of the candidates she
defeated were also Democrats, which negated the state's normal
requirement to have all of the top finishers from different
parties compete in a runoff. That vacancy lasted 101 days. But
had a candidate of another political party entered the special
election, a runoff would have had to have been held, which
would have kept the seat vacant for several additional months.
The seat won by Representative Brady of Pennsylvania became
vacant on November 11, 1997. He was nominated by a Democratic
Party committee and then won a special election on May 19,
1998, timed to coincide with the state's primary for the
regular two-year term. The total was 189 days, and that was
without a primary.
So the special election with apparently the lowest degree
of complexity--in Pennsylvania--resulted in the longest period
of vacancy, because the state decided to allow a longer
campaign and to consolidate the special election with others to
save time and money. Pennsylvania balanced a variety of
important interests in choosing the most appropriate method and
timeframe within the established laws and political culture of
Each of these elections took place in safe one-party
districts, and all of them took longer than the time-frame
envisioned by H.R. 2844. They serve as a warning that Congress
must be especially cautious in concocting a truncated procedure
for use in states which will have no advance knowledge--by
definition--of a catastrophic event and impending House
vacancies, where elections may be closely contested in
competitive districts, and where the mechanics of election
administration may be more cumbersome. However, they should
also serve as a warning for states about the potential
disadvantage of allowing excessively lengthy election periods.
The special election structure should be balanced against the
adverse consequences--loss of congressional representation--
which might occur as a result in a time of crisis. States are
in the best position to make such determinations.
CALIFORNIA AND TEXAS SPECIAL ELECTIONS DISRUPTED
We must also be mindful of eclectic procedures in a number
of states, including our two largest states, California and
Texas, which would be dismantled by this legislation. The
California all-candidate primary leads to a runoff among the
top vote getters from each party if no candidate initially
receives a majority. In Texas, all candidates run irrespective
of party, and the top two vote-getters irrespective of party
compete in a runoff if no candidate initially receives a
majority of the vote. Requiring political parties in those
states to choose individual nominees--without any form of
primary--would be both a radical change in the election process
and disregard a political culture which has evolved to reduce
the power of state and local party organizations.
MILITARY PERSONNEL AND AMERICANS ABROAD
H.R. 2844 completely ignores issues affecting military
personnel and their families and Americans abroad, and
wouldvirtually ensure that many of them would be excluded from the
special election process contemplated by the bill.
The total 45-day time frame in the bill between the
declaration of a House vacancy and the conduct of a special
election falls far short of the recommended 45-day time for
transmission and return of a completed ballot to and from an
absentee voter recommended to the states by the Federal Voting
Assistance Program (FVAP), an agency of the Department of
Under the terms of the bill, candidates of major parties
would probably not even be known until 35 days prior to the
date of the election, with additional time of uncertain
duration required to deal with the issue of non-major party
candidates and ballot preparation.
Members of the military and U.S. citizens living abroad are
eligible to register and vote absentee in Federal elections
under provisions of the Uniformed Overseas Citizens Absentee
Voting Act of 1986 (UOCAVA) (P.L. 99-410; 42 U.S.C. sec.
1973ff, et. seq.). The law was enacted to improve absentee
registration and voting and to consolidate existing laws.\2\
\2\ See the CRS Report, ``The Uniformed and Overseas Citizens
Absentee Voting Act: Background and Issues'', by Kevin J. Coleman,
updated January 30, 2003.
The Overseas Citizens Voting Rights Act of 1975 guaranteed
absentee registration and voting rights for citizens outside
the U.S., whether or not they maintained a U.S. residence or
address. Subsequently, UOCAVA, the National Defense
Authorization Act of 2002 (P.L. 107-107) and the Help America
Vote Act of 2002 (HAVA) (P.L. 107-252) added to and refined the
Under current Federal law, states must:
Permit absent uniformed services voters, spouses
and dependents and other overseas voters to vote absentee in
all elections for Federal office, including general, primary,
special and runoff elections. Voters may submit a single
absentee ballot application to receive a ballot for each
Federal election in a state during a year. HAVA subsequently
extended the period covered by a single absentee ballot
application to the next two regular general elections for
Federal offices, and also prohibited states from refusing to
accept a valid voter registration application on the grounds
that it was submitted prior to the first date on which the
state processes applications for the year.
States must also accept and process any valid
voter registration application from an absent uniformed
services or overseas voter if the application is received not
less than 30 days before the election.
The law recommends that states accept the Federal
Write-in Absentee Ballot for general elections to Federal
offices if the voter has not received an absentee ballot in a
timely manner. It also recommends that states accept the
Federal Post Card Application to allow for simultaneous
absentee registration and to request an absentee ballot.
So the trend in Federal law over the last few decades has
clearly been to establish additional rights for absentee voters
abroad, while admonishing states to comply with other useful
procedures through their own laws and regulations. The Federal
government has brought successful lawsuits or negotiated
consent decrees involving states which have been, or which
might be, unable to comply with legal requirements.
H.R. 2844 could jeopardize these gains with its 45-day
deadline for an election to occur, irrespective of other legal
or practical considerations. It is silent on the issue of
absentee voting. Its potential impact on and inter-relationship
with UOCAVA and the other relevant Federal statutes are unclear
and confusing at best, and contradictory at worst.
The committee report states:
* * * H.R. 2844 preempts state and local laws regarding
the timing of holding special elections to fill
vacancies in the House * * * in the event of
extraordinary circumstances, unless such state and
local laws otherwise are compliant or otherwise
consistent with the timeframes for holding expedited
special elections set forth in H.R. 2844.
Additional information on this topic appears in the
Exhibits following the main text.
DICTATING TO THE STATES
The Majority evidently intends, if H.R. 2844 passes, to
claim that it has addressed the issue of ensuring the
continuity of Congress in the event of catastrophe. It is true
that the process of filling vacant House seats in some states
may appear excruciatingly slow, especially if the House is
denuded of Members due to massive sudden deaths, or is
threatened with loss of a quorum due to a combination of deaths
States would be well advised to reexamine their laws, as
the House urged them to do when it adopted House Resolution 559
of the 107th Congress on October 10, 2002, barely more than one
year ago. This resolution, which fell under the jurisdiction of
our committee, was prompted by the efforts of a special working
group appointed by the bipartisan House leadership and led by
Representatives Cox of California and Frost of Texas.
The House Administration Committee has made no subsequent
effort to assess the progress states have made in this area
since passage of the non-binding House resolution. The odds are
that very little action has occurred, but Congress should at
least attempt to find out the reasons for states' inaction
before rushing to impose a Federal statute which may require
substantial changes in existing state laws and mandate
additional costs on the states. At the very least, the
committee should have asked the states for their opinions about
the bill before considering it and ordering it reported.
Any Federal statute setting a single House special election
procedure nationwide--and especially this one, which uses an
unrealistic timeframe, which could conceivably bar third party
and independent candidates from getting on the ballot, and
which threatens the rights of absentee voters, Americans living
abroad and military personnel and their families to participate
in the political process--needs to be approached with extreme
The Congressional Budget Office, in its estimate to
accompany this report, notes that the bill contains an
``intergovernmental mandate'' pursuant to the Unfunded Mandates
Reform Act (UMRA), and that ``* * * the new requirements and
short time frame required by the bill would likely generate
significant additional costs for states.''
CBO further notes that ``This intergovernmental mandate
would require 40 states to adopt a quicker time frame than they
currently have for holding general elections in the event of a
vacancy that does not coincide with a regularly scheduled
election, and some states would need to amend their state
constitutions. Further, the bill would likely prohibit states
from holdingprimaries--as required by law in some states--for
two reasons. First, the short time frame for the general election would
logistically prohibit the holding of a primary, and second, political
parties would be required to furnish a candidate within 10 days of the
announcement of extraordinary circumstances.''
When Congress is ready to fully engage continuity issues--
and the second session of the 108th Congress would be an
excellent time to do so--the House Administration Committee
could carefully craft a bill to provide states with a model
statute, for example, to use for special elections. The states
might be given the option of whether to employ a new Federal
statute or their existing laws, or to revise their existing
laws. In any case, states have a strong incentive to utilize
procedures to improve their current practices, and to ensure
that their House seats are filled as expeditiously as possible
so that other states would not enjoy the advantage of
representation in the House while theirs remained vacant.
At the markup, Ranking Member Larson raised questions on a
number of significant issues relating to H.R. 2844, which he
read into the record. In response, Chairman Ney said ``* * *
there are questions that have to be answered and need to be
answered, and we will need to talk to the bill's primary
sponsor to get answers to these questions.''
Prior to the filing of this report, no response had been
received from the bill's chief sponsor, Representative
Sensenbrenner. We restate and clarify these questions below,
and include additional discussion for the information of
Among possible problems with the legislation which were not
addressed at the committee markup:
How is the Bill's ``Trigger'' Activated?
The method for determining the number of vacancies required
to activate the ``extraordinary circumstances'' trigger
providing for the special election rules is not clear. H.R.
2844 assumes that the Speaker will make an announcement when
more than 100 vacancies exist in the House, but the bill does
not reference relevant House rules governing the Speaker's
announcements of vacancies, or possible actions of a Speaker
pro tempore, a temporary presiding officer of lesser status who
performs a variety of limited functions under House rules in
the absence of a Speaker.
The bill also does not address what might happen if the
Speakership is vacant at the time of ``extraordinary
circumstances'', and if a quorum is demonstrated not to be
present in the House to elect a new Speaker or Speaker pro
A Speaker pro tempore selected from a list created by the
departed Speaker to serve until the election of a Speaker or a
Speaker pro tempore under clause 8(b)(3)(A) of House Rule I may
only exercise such ``authorities of the Office of Speaker as
may be necessary and appropriate to that end'' (the election of
a new presiding officer), which may conflict with any potential
grant of new authority which might be contemplated by the bill.
This rule was adopted in the 108th Congress as one of the
recommendations of the Cox-Frost Working Group in 2002, and has
never been implemented, though the Speaker has submitted the
requisite list of names of potential Speakers pro tempore to
Would a Speaker pro tempore selected pursuant to clause
8(b)(3)(A) have authority to make a specific announcement
activating the provisions of H.R. 2844?
Would an announcement triggering special election processes
in the states be considered ``necessary and appropriate'' to
the election of a new Speaker if the position was vacant at the
A Speaker or Speaker pro tempore may announce adjustments
to the whole number of the House, pursuant to clause 5(c) of
Rule XX, in the event of the death, resignation, expulsion,
disqualification or removal of Members, but he does not
announce any specific number of vacancies, announce any
threshold or trigger number, or take any action to specifically
activate the provisions of a statute. The House notifies the
executive authority of a state when a vacancy occurs in the
membership from that state.
The bill does not specify how state executive authorities
collectively would take notice when the total number of
vacancies exceeds 100.
How many House vacancies should be needed?
The number of vacancies chosen to activate the trigger--
exceeding 100--is arbitrary and should have been examined in
greater detail by the committee. With 334 Members ``chosen,
living and sworn'' at the time the provisions of H.R. 2844
would go into effect, the House would have ample Members to
operate, and a quorum of 218 would not be threatened, unless a
substantial number of the survivors were also disabled.
The House passes bills or motions with more than 100
Members absent under normal circumstances; for example, it did
so four times on November 17, 2003, shortly before our
committee markup, and is not uncommon as Congress is attempting
to adjourn a session, or to go out for a lengthy recess.
How is the issue of Disability of Members addressed?
The bill does not address questions of disability, which
can threaten a quorum under certain conditions in the aftermath
of a catastrophe and paralyze the entire Congress.
The Constitution does not grant the Speaker, or the House
itself, or a state, authority to declare a sitting Member
disabled or to remove a sitting Member as a consequence of
disability. A constitutional amendment is very likely the only
method to create a new procedure to deal with instances in
which Members are alive but non-functional. Members can always
be expelled for any reason, assuming the House has a quorum to
do so. But what happens if the House lacks a quorum, or if the
prospect still exists that disabled Members might eventually
return to their duties?
In the 1981 case of Representative-elect Gladys Noon
Spellman (D-MD), the House declared her seat vacant by simple
majority vote after determining that she would not be able to
appear to take the oath of office, one of the Constitution's
requirements to become a Member. She was not a sitting Member
of the House, so a two-thirds vote on expulsion was not
During our earlier hearing, Representative Sensenbrenner
made various unsupported statements regarding incapacitation.
He said that state law was controlling, and that Members could
conceivably sign durable powers of attorney to allow others to
activate their resignations. But there is no support in the
Constitution, Federal law or House precedents for this kind of
procedure, and it has never been attempted in our history.
Later in the hearing, Representative Sensenbrenner said
that the Speaker could announce a vacancy based upon
incapacitation to count toward the 101-seat trigger. But the
Constitution does not permit this. As long as a Member has been
duly elected and sworn, the only way to effect removal would be
What happens if the number of House vacancies is reduced after the
``trigger'' is pulled but before special elections occur as
provided by H.R. 2844?
The bill does not address all possible conditions
surrounding potential mass vacancies. If special elections were
already in progress to fill vacancies under normal
circumstances prior to a catastrophe, and as a result reduced
the number of vacancies below 101, would special elections
under the bill's provisions continue? Would the trigger, once
pulled, be impossible to stop until all of the bill's
requirements were executed?
Could the bill's provisions invite additional election contests for
If a state violates provisions of the statute, such as by
missing the various timetables for nominating candidates by
political parties, or for meeting the 45-day deadline for
completing the special election process, would the
qualifications of any Member chosen as a result of such a
special election be open to challenge in the courts, or in the
House, resulting in additional delays in filling vacant seats?
If the bill creates an unrealistic timeframe and states fail to
comply, potential challenges to election results could create
instability when the country least needs it.
Would absentee voters, military voters, and other Americans abroad be
disadvantaged by the bill's timetables?
The bill may violate provisions of the Uniformed and
Overseas Citizens Absentee Voting Act and the Help America Vote
Act, affecting the rights of Americans serving in the military,
their families and other Americans living abroad, by creating a
time-frame too short to allow compliance with the various
requirements of these laws. The Department of Defense has
requested that states allow a minimum of 45 days from the time
ballots are finalized --not from the time a vacancy is
declared, as in this bill--to ensure the ability of these
voters to fully participate in a Federal election.
How can military personnel and their families and other
Americans living abroad become aware of a special election,
request absentee ballots, receive them once candidates become
known, and return them in the time frame contemplated by the
statute? Does the bill simply assume that somehow everything
will work out satisfactorily?
Can Independent and Third Party candidates qualify for the ballot
within the bill's timeframe?
The legislation is silent about independent or non-major-
party candidates. Assuming they could still attempt to run,
they would be dependent on existing provisions of state laws
which set qualifications and timeframes to get on the ballot,
e.g. by collecting signatures. These provisions, which differ
widely among the states, may no longer be viable within the
scheme of H.R. 2844. But failure to allow such access, i.e.
discriminating in favor of candidates of established major
political parties, could result in challenges during the
conduct of elections or to the election results.
How would political parties nominate candidates?
The bill authorizes, but apparently does not require
(``may'' is used in the text), political parties in a state
which are authorized to nominate candidates to choose a nominee
within 10 days. This method, with varying timeframes, is
already used for specialelections in some states, and the
timeframe obviously precludes a primary.
What happens if a party can't agree on a nominee, or misses
the 10-day threshold? It is not clear what the alternative
mechanism for selecting a party nominee might be. Surely it
would not be desirable to create a situation where a major
political party might be forced to, in effect, concede the
election because it could not comply with the deadlines. In a
variety of such cases in the past where party primaries were
not held, there have been intense contests at party committee
meetings or conventions to win nominations which in many cases
would be tantamount to winning election to the House.
But, as noted earlier, in states which conduct primaries to
choose nominees before holding a special election, or in states
which hold special elections without regard to party--such as
California and Texas--the scheme provided by the bill would
radically change the political environment.
It is not clear what would happen if the states want to use
some other method to choose party nominees but still have the
special election within a 45-day period. Minnesota, in the 1977
special election discussed previously, held both a primary and
special election within 28 days, but the primary occurred
outside of the 10-day window for choosing party nominees
established by H.R. 2844. Would such a process still be
What happens after the special elections have occurred?
The bill does not address issues of ballot counting,
processing and certification, all of which are conducted
pursuant to state laws, which must be completed before winners
can be declared and present themselves to the House to take the
oath of office, thereby ending the vacancies in House seats.
Seating in the absence of a certificate of election would be at
the discretion of the House.
There would be a period of several weeks before states
could properly certify the results of any special elections.
States have laws relating to the receipt of absentee ballots
and ballots from the military and others living abroad, and for
counting provisional ballots, before a certification could
occur. There is also the possibility of recounts of close
What is the timeframe for legal action to resolve controversy over
vacancies declared by the Speaker?
In the section of the bill which falls under Judiciary
Committee jurisdiction (section 2(b)(4)(B), lawsuits which
don't relate to the Speaker's announcement of vacancies are not
subject to the two day and three day limits on bringing a case
and rendering a decision. Litigants could conceivably seek an
injunction against conduct of such elections due to alleged
constitutional violations or violations of other relevant
provisions of law, or of other provisions of the new statute.
That could result in a substantial increase in the time it
takes to actually conduct such elections.
Attached is a description of the Federal Voting Assistance
Program (FVAP), an agency of the Department of Defense,
reprinted from their website. (www.fvap.gov):
The Federal Voting Assistance Program (FVAP) administers
the federal responsibilities of the Presidential designee
(Secretary of Defense), under the Uniformed and Overseas
Citizens Absentee Voting Act of 1986 (UOCAVA). The Act covers
more than six million potential voters. The FVAP has three
distinct goals. These are to:
1. Inform and educate U.S. citizens worldwide of
their right to vote;
2. Foster voting participation; and
3. Protect the integrity of, and simultaneously
enhance, the electoral process at the Federal, State
and local levels.
The FVAP provides U.S. citizens worldwide a broad range of
non-partisan information and assistance to facilitate their
participation in the democratic process--regardless of where
they work or live.
The UOCAVA requires that the states and territories allow
certain U.S. citizens, as defined below, to register and vote
absentee in elections for Federal office. These groups include:
Members of the Uniformed Services (including
Army, Navy, Air Force, Marine Corps, Coast Guard);
Eligible family members of the above;
Commissioned Corps of the Public Health
Service, and Commissioned Corps of the National Oceanic
and Atmospheric Administration;
U.S. citizens employed by the Federal
Government residing outside the U.S.; and
All other private U.S. citizens residing
outside the U.S.
Some states and territories also allow citizens covered by
the UOCAVA to register and vote in state and local elections as
The FVAP also acts on behalf of the Secretary of Defense to
administer the Federal responsibilities of the National Voter
Registration Act (NVRA), which designates armed forces
recruiting offices nationwide as voter registration agencies
allowing eligible U.S. citizens to apply for voter
registration, or apply to change voter registration data, at
6000 Armed Forces Recruitment Offices nationwide.
We accomplish our mission by providing services to:
Thousands of military Voting Assistance
Officers (VAOs) around the globe;
More than 250 Embassy and Consulate VAOs;
Hundreds of state officials;
Nearly 13,000 local government officials;
Hundreds of representatives of worldwide
organizations and corporations;
Personnel at 6,000 Armed Forces Recruiting
All citizens eligible to apply for voter
registration, or change voter registration data at
Armed Forces Recruitment Offices.
In all, these total approximately 205
million U.S. citizens of voting age.
Attached below is an example of correspondence from the
Federal Voting Assistance Program (FVAP) to the states (in this
case, Rhode Island) recommending changes in state laws,
regulations or policies affecting the handling of absentee
ballots for military and overseas voters. The FVAP recommends
that states allow a 45-day transit time for such voters to
receive, vote and return their absentee ballots and recommends
sample language for the states to consider.
The Need for 45-Day Ballot Transit Time
Rhode Island military and overseas voters continue to have
an extremely short period of time to receive, vote, and return
their absentee ballots in order to be counted (21 days). While
electronic transmission of election materials offers an
alternative to inadequate ballot transit time, insufficient
ballot transit time through the mail remains the primary
obstacle to timely delivery of absentee ballots for those who
request them. Our post election surveys and Postal Service
statistics indicate that a 45-day transit time is needed for
absentee ballots sent through international mail or the
military APO/FPO (overseas) post offices. This round trip
transit time is especially necessary because of the remote
location of many military personnel and overseas citizens such
as sailors and marines aboard ship, airmen and sailors at
isolated tracking sites around the world, as well as Department
of State personnel and citizen employees of American
multinational corporations in remote areas.
For all elections, the official charged with the printing
and distribution of ballots and election materials shall print
as many absentee ballots as may be necessary as soon as
possible after receiving the information concerning candidates
and measures to be voted on at an election, and balloting
materials shall be mailed not later than the 45th day before
Emergency Authority for Chief Election Official
During a period of a declared emergency or other situation
where there is a short time frame for ballot transmission, it
is recommended that Rhode Island's Chief Election Official have
the authority in law to designate alternate methods for
handling absentee ballots to ensure voters have the opportunity
to exercise their right to vote. The Chief Election Official
and the Federal Voting Assistance Program could mutually
establish expeditious methods for handling absentee ballots
including electronic transmission.
If a national or local emergency or other situation arises
which makes substantial compliance with the provisions of the
Uniformed and Overseas Citizens Absentee Voting Act impossible
or unreasonable, such as a natural disaster or an armed
conflict involving United States Armed Forces, or mobilization
of those forces, including State National Guard and Reserve
components, the Chief Election Official may prescribe, by
emergency orders or rules, such special procedures or
requirements as may be necessary to facilitate absentee voting
by those citizens directly affected who otherwise are eligible
to vote in the state.
The Chief Election Official shall adopt rules describing
the emergency powers and the situations in which the powers
will be exercised.
John B. Larson.
Robert A. Brady.