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HR 811, Unfunded Mandates, and the Protection of Civil Rights PDF  | Print |  Email
By Warren Stewart, VerifiedVoting.org   
September 18, 2007

A small but vocal contingent of fiscal conservatives have responded to the unwarranted complaints of elections officials about the potential of an unfunded mandate for the voting system security requirements proposed in The Voter Confidence and Increased Accessibility Act of 2007 (HR 811). Still smarting from the previous Congress’ unwillingness to fully fund the Help America Vote Act of 2002, county clerks and Secretaries of State have been skeptical that Congress will actually come through with the $1.1 Billion authorized in the bill.


However, tying HR 811’s mandate to appropriations would set a dangerous precedent for eliminating the civil rights exemption in the Unfunded Mandates Reform Act (UMRA).1 In enacting the reform measure, Congress recognized that the protection of civil rights superseded vagaries of funding allocations.

 

HR 811 fully funds the voting system requirements in the bill with more than $1 billion, and authorizes more funding for the audit requirements ($100 million annually) than the Congressional Budget Office deemed necessary ($50 to $60 million).  In addition, as confirmed by the text of HR 811’s CBO Score, “All provisions of H.R. 811 would be excluded from the Unfunded Mandates Reform Act.”2

 

Leadership and the Appropriations Committee should calm the fears of election officials and their representatives in Congress by publicly committing to fully fund HR 811.


No elected official wants to offer an opponent a pocketbook campaign talking point. But ensuring the accuracy of election results should not be left to the discretion of the Appropriators – requiring that elections be auditable and audited is common sense and long overdue.

Every piece of authorizing legislation is a potential unfunded mandate – HR 811 is not unique in this respect. But is it appropriate to choose this bill to fight this battle of principle?  Of course not -- and that is why both the Help America Vote Act of 2002 and HR 811 were exempt from the Unfunded Mandate Reform Act.1

To block HR 811 on the grounds that it is an unfunded mandate would not only be cutting off one’s nose to spite one’s face, it would eviscerate a critical piece of civil rights protection to the detriment of all voting rights bills that follow – the exclusion for voting rights bills in the Unfunded Mandate Reform Act.

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1Unfunded Mandates Reform Act Summarized” Congressional Research Service, updated January 25, 2005. "Exclusions and Exemptions. Legislation pertinent to the following subject matters remains exempt from the UMRA point-of-order procedures: individual constitutional rights, discrimination prohibitions, auditing compliance, emergency assistance requested by nonfederal government officials, national security or treaty obligations, emergencies as designated by the President and the Congress, and Social Security. The provisions of Title I pertinent to federal agencies (for example, the requirement that agencies determine whether sufficient appropriations exist to provide for proposed costs) do not apply to federal regulatory agencies. Also, provisions establishing conditions of federal assistance or duties stemming from participation in voluntary federal programs are not mandates."

 

2 The Committee Report for HR 811 notes that since HR 811 amends HAVA which, as a voting rights bill, is also had an exclusion from the UMRA: "UMRA does not apply to any provision in a bill, joint resolution, amendment, motion, or conference report before Congress that

(1) enforces constitutional rights of individuals;

 

(2) establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability;

 

(3) requires compliance with accounting and auditing procedures with respect to grants or other money or property provided by the Federal Government…For example, certain provisions of the Martin Luther King, Jr. Equal Protection of Voting Rights Act of 2001 [HAVA] were determined by CBO to fall within UMRA’s exception for legislative provisions that enforce the constitutional rights of individuals: “CBO has determined that the provisions of [Title III] would fall within that exclusion because they would enforce an individual’s right to vote and to have that vote counted.”
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