An "unfunded mandate" amendment would provide that if HR811's authorized funding for Fiscal Year 2008 is not appropriated for Fiscal Year 2008, the requirements of HR 811 will not be due until 2010. A bipartisan group of Representatives may offer such an amendment.
HR811ís authorized funding will NOT be appropriated for Fiscal Year 2008 for two reasons. First, the relevant appropriations bill has already passed in the House for Fiscal Year 2008. Second, anyone who tries to add HR811 funds into a supplemental bill after HR811 passes will be confronted with the EAC report shown below, which says the states donít need any more money. Therefore, HR811 funds will probably not be appropriated for Fiscal Year 2008, and such an amendment would move back HR811 deadliness to 2010.
In http://www.eac.gov/docs/Congressional%20Report%20Public%20Release%20Final.pdf† the EAC reported that the states had $1.3 billion in HAVA funding left in the bank at the end of 2006. This EAC report will be used by some to argue that no further HAVA-related appropriations are necessary in 2008, and this lack of further HAVA appropriations will used by others to trigger the "unfunded mandate" amendment to move the deadline for HR 811 to 2010, regardless of whether the states have the funds to switch to paper or not.
In the last few months the House appropriated a total of $336 million in HAVA funding for Fiscal Year 2008, and both the appropriating language and the language of HR811 say that HAVA funding can be used for HR811 purposes. However, neither of these sources of funds count as an authorization of "HR811 funding," so they won't prevent the unfunded mandate amendment from moving the HR811 deadline to 2010.
Question: Is it possible for HR811 to "rebudget" existing EAC funds toward satisfying its mandate, or are the funds considered to be "already spent"?
Answer: A similar controversy has already been faced politically. The EAC wrote to Florida in May to say that Florida could NOT use its remaining HAVA funds to replace equipment purchased with HAVA funds, on the grounds that it would be an "unreasonable" expense
Rep. Holt made sure that the Appropriators (Financial Services committee) included language pertaining to the $300 HAVA Title II appropriation explicitly stating that such an expense would be "reasonable."† The Appropriators did that - going so far is to say it would not only be "reasonable" but it would be "essential" -- and also directed the EAC to withdraw the opinion letter or face a legislative fix.
Holt then added language to HR811, which would be the legislative fix, saying that HR811 funds could be used to replace equipment purchased with HAVA funds (the bill already said that), AND that HAVA funds could be used for that purpose as well.†
However, although the leftover funds are not "spent," they may be "obligated" and thus not available for HR811 purposes. NASS has not officially rebutted the EAC report, either to say that the states no longer have the funds or to say that the funds are "obligated".† To the extent the funds are still available and are not otherwise obligated, HR811 language has freed up this money for use in switching to paper.
However, none of this will stop the unfunded mandate amendment. The amendment will require that "HR811 funds" (not simply left over or even newly-appropriated HAVA funds) be appropriated for Fiscal Year 2008.
HAVA was designed to force the purchase of electronic voting systems. How do we know? The only hard deadline was for purchase of the machines. New standards for these machines were scheduled for development AFTER the purchase deadlines. No other requirement has been enforced, or even talked about.
Applying this lesson to HR811: If the deadlines for paper ballots are pushed back to 2010, what's left? Centralized power under the EAC and preventing the public from examining the systems, which must be implemented immediately. All other requirements can be delayed, never implemented, or unfunded.