Statement of Barbara R. Arnwine Regarding the Help America Vote Act of 2001
(H.R. 3295)

Committee on the Judiciary of the United States House of Representatives
December 5, 2001

The Lawyers' Committee for Civil Rights Under Law ("The Lawyers' Committee") has applauded the bipartisan efforts in both the United States House of Representatives and the United States Senate to pass comprehensive electoral reform before Congress adjourns for the year. Both the House and Senate have been working hard to move a bill on election reform this year, however, we must unequivocally state that the legislation which is the subject of the hearing today, which was introduced by Congressmen Robert Ney(R-OH) and Steny Hoyer (D-MD) called "Help America Vote Act of 2001" as it is currently drafted, is not the right vehicle to move election reform forward.

As it is currently drafted, the Help America Vote Act of 2001 plainly fails to address the grave problems so many Americans faced in the 2000 elections and continued to face this year in elections in New Jersey and Virginia. Consequently, the Lawyers' Committee cannot support it. Congress needs to ensure that when it passes election reform legislation it truly solves the problems that voters throughout our nation encounter as they cast their ballots. Comprehensive electoral reform must move us forward with minimum standards that ensure uniformity and nondiscrimination. Under these standards all voters must have effective machinery which allows them to cast the vote they intend and to correct their ballot if they make a mistake. Comprehensive electoral reform must guarantee that legally registered voters are not erroneously purged from registration rolls, that voters are notified of and given the opportunity to cast provisional ballots, and finally, it must require that voters are informed of their rights under state and federal law. The one bill that goes the distance and addresses these problems head on is the Equal Protection of Voting Rights Act of 2001, introduced by Senator Christopher Dodd and Congressman John Conyers.

A simple examination of the details of the Help America Vote Act makes clear that there are serious problems which prevent it from bringing about true election reform and which actually take steps backward.

H.R. 3295 has inadequate minimum standards for machinery. It does not ensure that voting systems, even those newly purchased with federal monies will be accessible, give the voter notice of overvotes and undervotes and the opportunity to correct their ballot before it is cast, and will meet a national error rate standard. Comprehensive electoral reform must provide these minimum requirements for all voting machines if it is to correct the problems that voters all over our nation faced on election day 2000 and 2001.

H.R 3295 creates a loophole that allows states to opt out of provisional balloting. Provisional balloting is critical to ensure that registered voters have the ability to cast provisional ballots when there is confusion over issues of registration, identi fication or voting rights at the polling place. H.R. 3295 allows states to adopt "an alternative" to provisional balloting which in practice will undermine the access to and uniformity of provisional ballots. Furthermore, H.R. 3295 does nothing to guarantee that voters are aware of their right to cast a provisional ballot. More often than not, election officials do not provide adequate notification to voters that they can cast a provisional ballot. Therefore, for a provisional ballot measure to be meaningful and be a true safeguard as it is intended to be, it must require that election officials notify voters that they can receive a provisional ballot and also notify the voter of the final result. Problems with registration cannot be remedied unless voters know whether their ballot is counted.

H.R. 3295 rolls back existing federal law that protects people from being purged if they have not voted. Two provisions in H.R. 3295 take a significant step backward to undermine the protections provided to voters against purging for erroneous information. These provisions turn the National Voter Registration Act of 1993 (the "NVRA") on its head by allowing state officials to remove individuals from registration list because they have not voted in two successive federal elections and then don't respond to a notice. Current federal law does not allow voters to be purged from the rolls for not voting. However, the language of H.R. 3295 appears to allow such a practice and specifically amends a section of the National Voter Registration Act to change language which prevents voters from being purged for not voting. (See H.R. 3295, Section 502(2)(a) and Section 902(a)). Under these provisions, voters will be disenfranchised because the result of the purge is that they are not properly registered and, thus, cannot then have the safeguard of a provisional ballot to vote.

Additionally, H.R. 3295, as it is currently drafted, also eliminates the "fail safe" provision of the NVRA which allows voters to correct erroneous information that caused the purge and then confirm their address in writing so that they can cast their ballot at the polling place. (42 U.S.C. § 1973gg- 6(e)). Without this provision voters can be removed from the polls with no opportunity to correct inaccurate information and will also not be able to cast an effective provisional ballot because the erroneous registration information drops them from the registration list so election officials will be unable to count the provisional ballot.

Finally, H.R. 3295 does not require full compliance with federal voting rights laws and offers no check on states to make sure they are in compliance. It is essential to election reform that as states contemplate how they will spend federal money there is a means to ensure that they are currently in compliance with existing federal voting rights laws. H.R. 3295 offers no such a provision. This bill by simply allowing states to self certify their compliance, and only in area of "administering election systems" (which narrows where states need to be in compliance), offers no real protection for taxpayers as states spend millions of federal dollars without having to be in compliance with federal law. True election reform must have in place a mechanism that requires the Attorney General to check for compliance prior to releasing funds for electoral reform.

These provisions make clear and other elements of the legislation confirm that H.R. 3295, the bill offered by Congressmen Ney and Hoyer, cannot meet the concerns and problems that voters continue to face at polling places around the country. Going partway, as H.R. 3295 would have us do, and turning back the clock on important current voting rights laws, is not a compromise - true election reform must safeguard existing law and then move to solve the problems.

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