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109th Congress                                              Rept. 109-8
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================



 
                CONTINUITY IN REPRESENTATION ACT OF 2005

                                _______
                                

 February 24, 2005.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Ney, from the Committee on House Administration, submitted the 
                               following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 841]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on House Administration, to whom was referred 
the bill (H.R. 841) 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, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Continuity in Representation Act of 
2005''.

SEC. 2. REQUIRING SPECLAL 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) is amended--
          (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, 
        during the 75-day period which begins on the date of the 
        announcement of the vacancy--
                  ``(A) a regularly scheduled general election for the 
                office involved is to be held; or
                  ``(B) another special election for the office 
                involved is to be held, pursuant to a writ for a 
                special election issued by the chief executive of the 
                State prior to the date of the announcement of the 
                vacancy.
          ``(3) Nominations by parties.--If a special election is to be 
        held under this subsection, the determination of the candidates 
        who will run in such election shall be made--
                  ``(A) by nominations made not later than 10 days 
                after the Speaker announces that the vacancy exists by 
                the political parties of the State that are authorized 
                by State law to nominate candidates for the election; 
                or
                  ``(B) by any other method the State considers 
                appropriate, including holding primary elections, that 
                will ensure that the State will hold the special 
                election within the deadline required under paragraph 
                (2).
          ``(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 
                        Representatives.
                          ``(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.
          ``(5) Protecting ability of absent military and overseas 
        voters to participate in special elections.--
                  ``(A) Deadline for transmittal of absentee ballots.--
                In conducting a special election held under this 
                subsection to fill a vacancy in its representation, the 
                State shall ensure to the greatest extent practicable 
                (including through the use of electronic means) that 
                absentee ballots for the election are transmitted to 
                absent uniformed services voters and overseas voters 
                (as such terms are defined in the Uniformed and 
                Overseas Citizens Absentee Voting Act) not later than 
                15 days after the Speaker of the House of 
                Representatives announces that the vacancy exists.
                  ``(B) Period for ballot transit time.--
                Notwithstanding the deadlines referred to in paragraphs 
                (2) and (3), in the case of an individual who is an 
                absent uniformed services voter or an overseas voter 
                (as such terms are defined in the Uniformed and 
                Overseas Citizens Absentee Voting Act), a State shall 
                accept and process any otherwise valid ballot or other 
                election material from the voter so long as the ballot 
                or other material is received by the appropriate State 
                election official not later than 45 days after the 
                State transmits the ballot or other material to the 
                voter.
          ``(6) Application to district of columbia and territories.--
        This subsection shall apply--
                  ``(A) to a Delegate or Resident Commissioner to the 
                Congress in the same manner as it applies to a Member 
                of the House of Representatives; and
                  ``(B) to the District of Columbia, the Commonwealth 
                of Puerto Rico, American Samoa, Guam, and the United 
                States Virgin Islands in the same manner as it applies 
                to a State, except that a vacancy in the representation 
                from any such jurisdiction in the House shall not be 
                taken into account by the Speaker in determining 
                whether vacancies in the representation from the States 
                in the House exceed 100 for purposes of paragraph 
                (4)(A).
          ``(7) Rule of construction regarding federal election laws.--
        Nothing in this subsection may be construed to affect the 
        application to special elections under this subsection of any 
        Federal law governing the administration of elections for 
        Federal office (including any law providing for the enforcement 
        of any such law), including, but not limited to, the following:
                  ``(A) The Voting Rights Act of 1965 (42 U.S.C. 1973 
                et seq.), as amended.
                  ``(B) The Voting Accessibility for the Elderly and 
                Handicapped Act (42 U.S.C. 1973ee et seq.), as amended.
                  ``(C) The Uniformed and Overseas Citizens Absentee 
                Voting Act (42 U.S.C. 1973ff et seq.), as amended.
                  ``(D) The National Voter Registration Act of 1993 (42 
                U.S.C. 1973gg et seq.), as amended.
                  ``(E) The Americans With Disabilities Act of 1990 (42 
                U.S.C. 12101 et seq.), as amended.
                  ``(F) The Rehabilitation Act of 1973 (29 U.S.C. 701 
                et seq.), as amended.
                  ``(G) The Help America Vote Act of 2002 (42 U.S.C. 
                15301 et seq.), as amended.''.

                       Purpose of the Legislation

    H.R. 841, the Continuity in Representation Act of 2005, 
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. 841 is to ensure that a functioning House of 
Representatives would be in place with the ability to operate 
effectively and with legitimacy in the wake of a potential 
catastrophic terrorist attack.
    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.
    If such an attack were ever to occur, the presence of 
strong national leadership would be more important than ever. 
The American people would be desperately seeking reassurance 
that their government remained intact and retained the 
capability of acting vigorously in the nation's defense. 
Therefore, it would be essential that a functioning Congress be 
in place with the ability to operate with legitimacy as soon as 
possible.
    Any potential solution to this issue must take into account 
the fundamental role the House plays in our constitutional 
structure. When drafting the federal Constitution, our Founding 
Fathers designed the House to be the branch of government 
closest to the people. They believed the only way this 
objective could be accomplished was through frequent elections. 
Consequently, the Constitution--in Article I, Section 2, Clause 
4--provides that vacancies in the House may be filled only 
through special elections. As a result, no Member has ever 
served in this House who was not first elected by the people he 
or she represents.
    H.R. 841 presents a balanced and measured solution to this 
most complex and difficult matter. The Continuity in 
Representation Act of 2005 would ensure the continuing 
operation of the House during times of national crisis, while 
at the same time preserving the character of the House as an 
elected body. For this the reason, the Committee seeks to move 
the process forward by favorably reporting this important 
legislation.

                       Summary of the Legislation

    H.R. 841, as introduced, is identical to H.R. 2844, the 
Continuity in Representation Act of 2004, which passed in the 
House last year by an overwhelming vote of 306-97. During the 
mark-up, Chairman Ney introduced an amendment in the nature of 
a substitute that maintains the structure and details of the 
introduced bill but contains a number of modifications to 
accommodate concerns raised by the minority and the states.
    H.R. 841, 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 
majority opinion of state election officials appears to be that 
45 days would provide sufficient time to plan and prepare for 
an expedited special election.
    Under H.R. 841, as amended, the candidates running in 
expedited special elections would be selected either by 
political parties authorized by state law to nominate 
candidates--which would have up to 10 days following the 
Speaker's announcement to nominate a candidate to run in the 
special election--or by other methods the state deems 
appropriate, including holding special elections, provided the 
state is otherwise able to meet the 45-day deadline for 
conducting the special elections. Thus, the states are given 
greater flexibility regarding the procedures by which 
candidates would be selected for expedited special elections.
    H.R. 841, as amended, also provides that if a state is 
scheduled to hold a regularly scheduled general election or a 
previously scheduled special 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. H.R. 841, as introduced, granted the 30-day extension 
only to states whose general election machinery was already in 
motion. H.R. 841, as amended, permits states that have 
scheduled special elections prior to the Speaker's announcement 
to avail themselves of this extension as well.
    H.R. 841, as amended, also protects the ability of military 
personnel and overseas citizens to fully participate in 
expedited special election by instructing that absentee ballots 
be transmitted to such voters within 15 days of the Speaker's 
announcement and requiring that such absentee ballots be 
counted if received not later than 45 days after the state 
transmits them. In addition, the amendment clarifies that its 
expedited special election procedures are equally applicable to 
the representatives of the District of Columbia and the U.S. 
territories. Furthermore, H.R. 841, as amended, reiterates that 
federal voting and election laws would remain in effect for any 
expedited special elections.
    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 States 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 
thechallenge. A final decision by the panel would be required to be 
issued within three (3) days of the filing and would not be reviewable.

               Committee Consideration of the Legislation


                       INTRODUCTION AND REFERRAL

    On Wednesday February 16, 2005, Mr. Sensenbrenner 
introduced H.R. 841, Continuity in Representation Act of 2005, 
which was referred to the Committee on House Administration.

                                HEARINGS

    The Committee on House Administration did not hold hearings 
on H.R. 841. (In the 108th Congress, the Committee held a 
hearing on H.R. 841's predecessor, H.R. 2844.)

                                 Markup

    On Thursday February 17, 2005, the Committee met to mark up 
H.R. 841. The Committee favorably reported H.R. 841, as 
amended, by voice vote, 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 
committee report.

Amendment to the amendment in the nature of a substitute

    Offered by Ms. Millender-McDonald. The first vote during 
the mark-up came on an amendment to extend the amount of time 
during which expedited special elections must be held from 45 
days to 60 days.
    The amendment was rejected by voice vote.

Amendment in the nature of a substitute

    Offered by Mr. Ney. The second vote during the markup came 
on the amendment in the nature of a substitute offered by Mr. 
Ney.
    The amendment affords states greater flexibility in 
selecting candidates for expedited special elections, grants 
states with previously scheduled special elections the 30-day 
extension, and clarifies its applicability to representatives 
of D.C. and the U.S. territories.
    The amendment was agreed to by voice vote.

Report favorably to the House

    The Committee voted to report H.R. 841 favorably, as 
amended. The vote to report favorably was approved by voice 
vote.

                      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. 841 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 
circumstances.

                        Constitutional Authority

    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 
elections.

                            Federal Mandates

    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.

                        Preemption Clarification

    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. 841 preempts state 
and local laws regarding the timing of holding special 
elections to fill vacancies in the House of Representatives in 
the event of extraordinary circumstances, unless such state and 
local laws are otherwise consistent with the timeframes for 
holding expedited special elections set forth in H.R. 841.

               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:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 24, 2005.
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. 841, the 
Continuity in Representation Act of 2005.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Sarah Puro.
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure.

H.R. 841--Continuity in Representation Act of 2005

    Summary: H.R. 841 would provide for the continuity of the 
House of Representatives in the wake of a catastrophic event. 
The legislation would require states to hold special elections 
to fill vacancies in the House of Representatives within 45 
days after an announcement by the Speaker of the House of 
``extraordinary circumstances''--effectively 100 or more 
vacancies in the House of Representatives. The bill also would 
provide for judicial review of challenges to the announcement 
of extraordinary circumstances. CBO estimates that enacting 
H.R. 841 would have no significant impact on the federal 
budget.
    Section 4 of the Unfunded Mandates Reform Act (UMRA) 
excludes from the application of that act any legislative 
provisions that enforce the constitutional rights of 
individuals. CBO has determined that certain provisions of H.R. 
841 would fall within that exclusion because it would protect 
the rights of oversees and military voters to cast a ballot. 
Other provisions of the bill contain no private-sector mandates 
as defined in UMRA. However, by requiring states to hold 
elections within 45 days of an announcement of ``extraordinary 
circumstances,'' H.R. 841 would contain an intergovernmental 
mandate as defined in UMRA. CBO estimates that the annual cost 
of the mandate over the next five years would not exceed the 
threshold established in that act ($62 million in 2005, 
adjusted annually for inflation).
    Estimated cost to the Federal Government: CBO estimates 
that enacting H.R. 841 would have no significant impact on the 
federal budget over the next few 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 and private-sector mandates contained in 
the bill: H.R. 841 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; some states also 
would need to amend their constitutions. Further, the bill 
likely would prohibit states from holding primaries--as 
required by law in some states--because the short time frame 
for the general election would logistically prohibit the 
holding of a primary.
    Section 4 of the Unfunded Mandates Reform Act excludes from 
the application of that act any legislative provisions that 
enforce the constitutional rights of individuals. CBO has 
determined that section 2(5) of H.R. 841 would fall within that 
exclusion because it would protect the voting rights of 
citizens living oversees, including members of the armed 
forces. Therefore, CBO has not reviewed this section for 
mandates. Other provisions of the bill contain no private-
sector mandates as defined in UMRA.
    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. The likelihood is small that, over 
the next five years, events would occur triggering the 
provisions in H.R. 841; therefore, CBO estimates that the cost 
of mandates contained in the bill would not exceed the 
threshold established in UMRA ($62 million in 2005, adjusted 
annually for inflation). Further, even in the event of 
extraordinary circumstances, it is unlikely that the additional 
requirements would generate extra costs to states that would 
exceed that threshold.

         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, during the 75-day period which begins 
        on the date of the announcement of the vacancy--
                  (A) a regularly scheduled general election 
                for the office involved is to be held; or
                  (B) another special election for the office 
                involved is to be held, pursuant to a writ for 
                a special election issued by the chief 
                executive of the State prior to the date of the 
                announcement of the vacancy.
          (3) Nominations by parties.--If a special election is 
        to be held under this subsection, the determination of 
        the candidates who will run in such election shall be 
        made--
                  (A) by nominations made not later than 10 
                days after the Speaker announces that the 
                vacancy exists by the political parties of the 
                State that are authorized by State law to 
                nominate candidates for the election; or
                  (B) by any other method the State considers 
                appropriate, including holding primary 
                elections, that will ensure that the State will 
                hold the special election within the deadline 
                required under paragraph (2).
          (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 announcementmade 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 Representatives.
                          (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.
          (5) Protecting ability of absent military and 
        overseas voters to participate in special elections.--
                  (A) Deadline for transmittal of absentee 
                ballots.--In conducting a special election held 
                under this subsection to fill a vacancy in its 
                representation, the State shall ensure to the 
                greatest extent practicable (including through 
                the use of electronic means) that absentee 
                ballots for the election are transmitted to 
                absent uniformed services voters and overseas 
                voters (as such terms are defined in the 
                Uniformed and Overseas Citizens Absentee Voting 
                Act) not later than 15 days after the Speaker 
                of the House of Representatives announces that 
                the vacancy exists.
                  (B) Period for ballot transit time.--
                Notwithstanding the deadlines referred to in 
                paragraphs (2) and (3), in the case of an 
                individual who is an absent uniformed services 
                voter or an overseas voter (as such terms are 
                defined in the Uniformed and Overseas Citizens 
                Absentee Voting Act), a State shall accept and 
                process any otherwise valid ballot or other 
                election material from the voter so long as the 
                ballot or other material is received by the 
                appropriate State election official not later 
                than 45 days after the State transmits the 
                ballot or other material to the voter.
          (6) Application to district of columbia and 
        territories.--This subsection shall apply--
                  (A) to a Delegate or Resident Commissioner to 
                the Congress in the same manner as it applies 
                to a Member of the House of Representatives; 
                and
                  (B) to the District of Columbia, the 
                Commonwealth of Puerto Rico, American Samoa, 
                Guam, and the United States Virgin Islands in 
                the same manner as it applies to a State, 
                except that a vacancy in the representation 
                from any such jurisdiction in the House shall 
                not be taken into account by the Speaker in 
                determining whether vacancies in the 
                representation from the States in the House 
                exceed 100 for purposes of paragraph (4)(A).
          (7) Rule of construction regarding federal election 
        laws.--Nothing in this subsection may be construed to 
        affect the application to special elections under this 
        subsection of any Federal law governing the 
        administration of elections for Federal office 
        (including any law providing for the enforcement of any 
        such law), including, but not limited to, the 
        following:
                  (A) The Voting Rights Act of 1965 (42 U.S.C. 
                1973 et seq.), as amended.
                  (B) The Voting Accessibility for the Elderly 
                and Handicapped Act (42 U.S.C. 1973ee et seq.), 
                as amended.
                  (C) The Uniformed and Overseas Citizens 
                Absentee Voting Act (42 U.S.C. 1973ff et seq.), 
                as amended.
                  (D) The National Voter Registration Act of 
                1993 (42 U.S.C. 1973gg et seq.), as amended.
                  (E) The Americans With Disabilities Act of 
                1990 (42 U.S.C. 12101 et seq.), as amended.
                  (F) The Rehabilitation Act of 1973 (29 U.S.C. 
                701 et seq.), as amended.
                  (G) The Help America Vote Act of 2002 (42 
                U.S.C. 15301 et seq.), as amended.

    MINORITY VIEWS OF RANKING MEMBER JUANITA MILLENDER-McDONALD AND 
                     REPRESENTATIVE ROBERT A. BRADY

    H.R. 841, a bill to require States to hold special 
elections to fill vacancies in the House of Representatives in 
extraordinary circumstances, as reported with an amendment by 
the Committee on House Administration, differs only slightly 
from H.R. 2844, which passed the House in the 108th Congress 
and died in the Senate. It is a fatally flawed bill which 
compromises democracy and it deserves defeat again this year.
    H.R. 841 contains a wish list of provisions which would set 
impractical deadlines, ignore the rights of candidates to run 
and of voters to participate in elections, and 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.
    H.R. 841 would require states to invent mechanisms to 
implement what may be radical changes in their own election 
laws and political structures. The bill creates a procedure 
that may be little more than a shell, calls it a ``special 
election'', and leaves states to pick up the pieces. What would 
happen if the states fail to do so? The bill does not say.
    We want to stress that H.R. 841 has no partisan content. It 
is simply a poorly written piece of legislation. Congressional 
continuity, which encompasses other issues beyond the scope of 
this legislation, is not a partisan issue. No one gains 
advantage when hundreds of Members may be dead, incapacitated, 
or confined to hospitals or burn wards.

                          PRINCIPAL PROVISIONS

    This legislation would exercise Congress' extraordinary 
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.
    By shortening the time frame for the conduct of such 
elections to a maximum of 45 days following the Speaker's 
declaration, 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 utilized.
    Two major amendments sponsored by the Minority were 
accepted last year, one of them very reluctantly, on the House 
Floor. The first amendment, offered by Representatives Skelton 
and Maloney, dealt with the time frame for getting ballots to 
overseas absentee and military voters; the other was adopted as 
the motion to recommit by Representative Watt after the Rules 
Committee refused to allow then-Ranking Member Larson to 
present it in the Committee of the Whole in the form of an 
amendment. This amendment was intended to protect major civil 
rights and voting rights laws, and laws to protect handicapped 
voters, from being gutted. Its compatibility with the bill's 
45-day deadline remains unclear. Both provisions remain in the 
new bill.

                       60-DAY COMPROMISE REJECTED

    The bill as currently designed probably cannot be improved 
enough to make it workable, but the Chairman accepted some 
ideas from the Minority to clarify legislative language before 
the February 17 markup. However, the Majority voted down 
ouramendment to give the states greater flexibility by allowing a 60-
day period for the conduct of the expedited special elections. This was 
an effort to find common ground after the House rejected a 75-day time 
frame offered last year by Representative Larson.
    The amendment which was offered in the Committee by Ranking 
Member Millender-McDonald would have introduced greater 
flexibility into the expedited process, to allow more overall 
time for the elections, and to give the states additional 
options on how to conduct them. 60 days is not a magic bullet, 
any more than 45 days is, but experience--as well as decades 
spent as candidates running for public office--teaches us to 
err on the side of flexibility, especially at a time of 
potential national crisis.
    We anticipate that the 60-day proposal will be submitted 
again for a vote by the full House.
    Proponents seeking a truncated time frame for this 
legislation have often sought to cite Doug Lewis, Executive 
Director of the Election Center, which represents the nation's 
voter registration and elections officials and administrators 
at the city, township, county and state levels. But he has not 
endorsed this bill and has said that 45 days is still too short 
and that a timeframe closer to 60 days would provide states 
with greater assurance of success. State and local election 
officials at election process forums over the last two years 
have raised questions about the time frame as well.
    In testimony prepared before the Committee on House 
Administration on September 18, 2003, Mr. Lewis framed the 
debate as follows:

          What is an election? Is it a date-certain event so 
        that voters can vote, or is it more than that? Is an 
        election in American democracy really a ``process'' 
        that includes time for the identification of 
        candidates, the ability of candidates to mount a 
        campaign, to raise funds, to attract supporters, to 
        inform the voters of what their choices are between the 
        individual contestants, and then going to the polls to 
        make that choice?
          The point is this: if it is only an event, then we 
        can structure an event in a short time frame and carry 
        off the event as flawlessly as possible. If, however, 
        you define it in the broader ``process'' terms, then 
        you have to allow the process time to work.

    We agree that elections are a process which implements 
democracy. A longer time frame allows states more time to deal 
with the mechanics of elections, and allows the public more 
time to gain awareness of the candidates and the campaign.
    After polling elections officials from around the country, 
Doug Lewis summarized the results:

          While the responses indicated a variety of dates 
        ranging from the shortest time period of 35 days (after 
        determination of who the candidates will be) to a 
        period of four months, it appears that elections 
        administrators feel that they can conduct an election 
        with as few as 45 days. However, the elections 
        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. 
        [Testimony of Doug Lewis before the Committee on House 
        Administration, page 3.]

    We also prefer to come down on the side of the interests of 
democracy. And our instincts as candidates tell us that 45-days 
is simply too short.
    Since the intent of the bill is to fill vacancies in the 
House, we should not create artificial barriers to doing so. 
Nothing in the bill itself provides that a Member-elect would 
rush to the Floor tobe sworn in at the end of 45-days, 60-days 
or any other such framework; states must correct their results, certify 
their returns, await receipt of absentee ballots and possibly recount 
ballots in close races. The 2004 Washington gubernatorial race 
demonstrates the possibilities for controversy and delay inherent in 
the election administration process.
    No House can bind a future one, and the House can make its 
own judgments based on the totality of facts in any potential 
election contest based on a potential breach of the 45-day 
deadline. However, proponents should admit that if the states, 
for whatever reason, fail to comply with the bill's statutory 
scheme, attempts to enforce it would defeat their ultimate 
objective of filling House seats.

                        NOMINATION OF CANDIDATES

    Controversy has long surrounded provisions in paragraph 3 
of the bill requiring that party nominees be selected within 10 
days of the Speaker's announcement. This provision had the 
effect of banning primaries to select nominees for the House 
and requiring that a party committee or related entity make the 
decision, an unnecessary restriction which did nothing to 
enhance the bill's overall objective. Chairman Ney's manager's 
amendment, while not excising this language, pulled some of its 
teeth by allowing the states to consider having primaries and 
other options to nominate candidates. The 45-day overall 
deadline will only give them limited flexibility in that 
regard, however.
    Some states already use a party-committee system to conduct 
special elections under normal circumstances. Many others 
conduct primary elections, and any system which cuts the 
electorate out of critical decisions would be anathema to 
voters in those states.
    We feel strongly about this issue because there are some 
states in which the parties play a lesser roll in selecting 
candidates. The original bill would have gutted long-standing 
political traditions across the nation, such as primaries, at a 
time when a reconstituted Congress would need to renew its 
legitimacy from the American people.

                          PULLING THE TRIGGER

    At the hearing before our Committee on November 19, 2003, 
questions arose about the operation of the trigger mechanism in 
the bill, which would be activated by the Speaker when the 
threshold exceeding 100 vacancies is reached. While the bill 
does not say so specifically, apparently provisions of House 
rules allowing a ``Speaker pro tempore'' designated from a list 
left by a deceased Speaker to pull the trigger would kick in.
    There is a problem with this formulation. What would happen 
if all of the Members of the House were killed or 
incapacitated, leaving no one to pull the trigger?
    During the Floor debate on April 22, 2004 on H.R. 2844, 
Representative Dreier, one of that bill's lead sponsors, 
attempted to respond to this question as posed by 
Representative Watson. However, in doing so he raised more 
questions than he answered. He said ``* * * it would be up to 
the people to come together and make the determination as the 
rebuilding process begins.'' [Congressional Record, p H2331]. 
How? Isn't the purpose of this bill supposedly to facilitate 
the return of representative government, the kind the 
Constitution gives to us? It is the responsibility of Congress 
to anticipate and find solutions to problems when it enacts 
laws, not to rely on some vague national town meeting if the 
bill fails to work. This is yet another example of how the 
bill's sponsors have not thought it through.
    The Manager's amendment does address a different problem 
with the trigger, raised by the Minority. As originally 
written, the bill would have cancelled ongoing special 
elections once the trigger point was reached. With candidates 
perhaps already chosen and campaigns already in progress under 
state laws, it would have forced new campaigns to begin under 
provisions of the Federal statute, possibly with new candidates 
and certainly with chaos. It is easy to imagine such a scenario 
if a catastrophe created many vacancies in the House, but still 
fewer than 101.
    The chief executive authorities of states must, under the 
Constitution, issue writs of election to fill these vacancies 
under terms of state law. Imagine a scenario where Members may 
be suffering from radiation poisoning or severe burns, with 
fatalities occurring over a period of time. It might be some 
time before 101 vacancies were reached, in stages.
    The new provision would clarify that any special elections 
which are already in progress to fill vacancies at the time 
that the threshold is reached could continue, under a new 75-
day deadline following the Speaker's announcement. Only 
vacancies not declared until after the triggering would fall 
totally under the Federal provisions. We would have preferred 
to allow the pre-trigger special elections to proceed to their 
normal conclusion under state law, but the clarification is 
superior to the original language in the bill.
    The Manager's amendment would also allow expedited special 
elections under the Federal statute to fill the seats of the 
four delegates to the House and the resident commissioner of 
Puerto Rico, if those seats were vacant at the time the 101-
Member threshold was reached. This provision was suggested by 
our colleague from the District of Columbia, Eleanor Holmes 
Norton, during the Floor debate last year, and the bill's 
sponsors have accepted language by Ranking Member Millender-
McDonald to implement it.
    The delegates and resident commissioner are not Members of 
the House elected from states, and their presence or absence 
would have no effect on the whole number of the House or its 
ability to achieve a quorum. The Speaker does not take formal 
notice of vacancies in these positions under the House rules. 
However, allowing their constituencies to participate in 
expedited elections could help ensure that new delegates might 
appear more quickly to serve as a voice, if not a vote, in the 
repopulating House of Representatives. How the exercise of this 
provision might affect these unique constituencies in practice 
is unclear, as it is for congressional seats generally.

                            ABSENTEE VOTING

    In a provision retained from the last Congress, the bill 
urges, but does not require, states to ensure to the greatest 
extent practicable, including through use of electronic means, 
that absentee ballots are transmitted not later than 15 days 
after the Speaker declares that the 101-vacancy threshold has 
been reached. It also requires states to accept and process 
such ballots if received not later than 45 days after the state 
transmits the ballot.
    Some questions have arisen about whether these time frames, 
like the overall time frame imagined in the bill, are adequate. 
Greater protection would be afforded to the rights of Americans 
residing abroad, including military and diplomatic personnel, 
with a longer overall special election deadline.

                            UNFUNDED MANDATE

    This legislation imposes an unfunded mandate upon the 
states. It does so because the bill's principal purpose is to 
impose auniform special election system on the states following 
a catastrophe, which the states are then left to cope with somehow.
    Special elections to fill vacancies occur in every 
Congress, under provisions of state law. There is one going on 
right now for the late Representative Bob Matsui's seat in 
California. But if special elections occur outside the time 
frame and structure of elections for other offices which have 
already been planned, states incur additional costs. Some 
states allow special elections to be timed to coincide with 
other regularly-scheduled events, such as primaries, to reduce 
costs. Others choose not to use primaries to pick special 
election nominees, a choice acceptable to the voters in states 
where the legislatures have enacted that practice.
    The new Federal mandate, according to a report of the 
Congressional Budget Office printed in the last Congress' 
committee report on H.R. 2844 (H. Rpt. 108-404, part 1) of 
December 8, 2003, would require 40 states to adopt a quicker 
time frame than they already have for holding special elections 
which do not coincide with a regularly scheduled election, and 
some states would need to amend their state constitutions.
    CBO estimates that the cost to run a special election is 
between $200,000 and $500,000 per district in 2004 dollars. CBO 
also estimates that the overall additional costs generated by 
the bill might not exceed $60 million beyond what would 
normally be spent. We are concerned that the price tag might be 
higher, depending on the particular catastrophic circumstances 
which trigger provisions of the bill. How those extra costs 
might be spread around the country is, of course, a complete 
unknown.
    But we also need to look at the costs in another way. What 
is the cost to democracy from passing this bill? The costs are 
profound. This bill would deprive the public of the benefits of 
a full and open campaign, with opportunities to register to 
vote, meet the candidates, observe political debates, learn 
about the issues in the media, and receive and read literature 
about the candidates. In states which were forced to abandon 
their party primaries because of lack of time caused by the 45-
day deadline, the public could not choose its own candidates. 
That function would fall to a party entity of some kind; a 
committee, caucus or convention. In many districts, which lack 
two-party competition, the choice at this level would dictate 
the final outcome of the pro forma election which would follow. 
Candidates might not have sufficient time to be able to make 
the political and personal decisions required to offer 
themselves as candidates.
    Not every person who would make a good Member of Congress 
is an instant candidate just waiting to run. Starting a 
campaign requires consulting friends and family, weighing 
finances, assessing staff, gauging support from other political 
figures and organizations, and establishing a campaign 
committee with the ability to operate within the Byzantine 
framework of today's campaign finance laws. And some who may 
wish to run might not be able to if petition signatures were 
required to get on the ballot, or money had to be raised to pay 
filing fees or meet other qualifications which might be 
disrupted by the deadlines in the legislation.
    The public may suffer because of lack of time to manage the 
election competently and fairly. There are significant problems 
with voter registration lists, voting by felons, voting with 
provisional ballots, transmitting, receiving and counting 
absentee ballots, and staffing the polls with voting machines 
and election workers even under the best of circumstances in 
normal elections. After a catastrophe, we can add a potential 
breakdown in communications systems and other infrastructure, 
including transportation, along with potential inability to 
order voting machines and ballots.

                   CONTINUITY DESERVES BROADER DEBATE

    The Minority has made a good faith attempt to mitigate the 
most serious problems in this bill, but we remain hamstrung by 
the concept of national uniformity in the conduct of special 
elections to the House, and by the Majority's insistence on the 
45-day rule.
    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 by modifying their laws and 
state constitutions. On the contrary, we encourage constructive 
action at both levels of government and believe that public 
debate on broader issues of continuity of government should be 
encouraged, through public forums and other means. We want to 
especially thank the Continuity of Government Commission, 
organized by the Brookings Institution and the American 
Enterprise Institute, for their hearings, reports and other 
efforts to enhance the public debate.
    During last year's debate on this bill, opponents were 
unfairly attacked with misleading criticism and 
misrepresentation of the various proposals for constitutional 
amendments, which were intended to plug gaps in the bill or to 
address related continuity of government issues.
    We make this observation as Members who voted against both 
Representative Baird's constitutional amendment providing 
temporary appointments to the House, and Representative 
Dreier's constitutional amendment approved on January 4, 2005--
the one masquerading as a House rule--which gives a House 
without a quorum all sorts of extraordinary powers which the 
Framers of the Constitution explicitly prohibited it from 
exercising. The failure to allow separate consideration of this 
outrageous ``provisional quorum'' proposal was an example of 
how the Majority was willing to start off the new Congress by 
preventing free and open debate and amendment even on matters 
of the most immense institutional and historical significance.
    We urge our colleagues not to rush H.R. 841 through the 
House again, and to allow an open amendment process. We saw 
what happened last year, when the Senate refused to consider 
the legislation. Passing essentially the same bill and making 
the process partisan risks getting the same result--nothing.
    We have heard complaints from some that the Senate should 
have deferred to the House last year--and should do so now--
because this bill affects only House elections. We believe that 
this argument is spurious and merely reflects the 
disappointment of the Majority leadership in the House in not 
being able to bully the other chamber.
    H.R. 841 affects the structure and functioning of the 
entire government, which impacts directly on the Senate and the 
constituents senators represent, as well as the executive 
branch and judiciary. The failure of the legislation last year 
ultimately validated the constitutional structure set up by the 
Framers, which requires that Congress can, by law, change state 
laws governing Federal elections, and denies to either chamber 
of Congress alone the dangerous power to dictate conditions for 
the conduct of elections to fill its seats. The constitutional 
system of checks and balances forced this legislation to 
undergo scrutiny outside the House which it could not survive.
    The core problem remains. This bill's rigid deadlines are 
tailor-made to foster confusion and litigation at a time of 
future national crisis, when the American people will need to 
renew the legitimacy of their elected representatives in the 
House. In its zeal to expedite process, H.R. 841 compromises 
democracy and should not become law.
                                   Juanita Millender-McDonald.
                                   Robert A. Brady.