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The Holt Bill (H.R. 811) is being advertised as a "paper trail" bill, but it also makes permanent the Election Assistance Commission (EAC). The EAC is four White House appointees who control the nation's voting systems.
Holt Bill proponents say that this is not a problem. They point to recent news coverage of the EAC, showing its incompetence and its questionable and even fraudulent actions. They say that the EAC has conducted itself so poorly as to make itself irrelevent. They look to hiring new Commissioners to "do a better job".
But the issue is not who are the Commissioners or how they conduct themselves. The issue is the very entity itself: four White House appointees with the power to determine what voting equipment is in use in our nation's elections, and to influence policy through the release (or nonrelease, as the case may be) of valid (or fraudulent) studies and reports.
Activists point to the EAC's first Chair, DeForest Soaries, now a vocal critic of the Commission. One of Soaries' first acts as Chair was to seek the authority to cancel national elections in case of a "homeland security threat". Soaries' resignation, and his subsequent criticism of the EAC is not about the inherently undemocratic nature of the Commission in our political structure, but rather the lack of authority held by the EAC. There is no solace to be found in this school of thought. The problem is not, as some activists claim, that we need to hold the EAC accountable or even replace current Commissioners with "better" ones. The problem is the existence of the entity itself.
The Holt Bill neither broadens nor weakens their power per se. Last year's version of the bill, H.R. 550, did broaden their powers, giving them audit and de facto recount authority, but this year's version H.R. 811 was changed, possibly to defuse that criticism.
But H.R. 811 makes the EAC a permanent entity, removing the EAC sunset date imposed by the Help America Vote Act (HAVA) when it created the EAC.
HAVA created the EAC as “an advisory” commission, with the exception of granting it regulatory power over the NVRA. As an executive commission it can become 100% regulatory with the insertion of one line of text in any congressional legislation.
This is how the FEC became regulatory; it began advisory just as did the EAC.
If the EAC had been created as a congressional commission this picture changes, because a congressional commission can never be regulatory. This, in fact, was the rationale behind the advise of then counsel for the architects of HAVA. Counsel advised against making the EAC executively appointed, but the HAVA gang of four (McConnell, Dodd, Hoyer, and Ney) overrode his objections.
We don’t know why they wanted to centralize election control, but we know full well the implications and we need to make this clear to all those good people supporting Holt because they think it requires paper trails and that is the full essence of the bill.
Holt's office and his supporters want us to believe that making the EAC permanent is a “nonissue”. But if they think it is such a great idea, then why did Hholt's office deliberately remove the word "Permanent" from the December draft of the bill, and make the section header " sec. 4. Extension of authorization of election assistance commission" i nstead of “PERMANENT Extension…" as it had been spelled out in the December draft. Do they think that by removing the word "permanent" we won't understand that the unlimited extension means the same thing?
As appalling as is the notion of cancelling elections proposed by former Chair Soaries, the who and how question with respect to the EAC Commissioneres is not really the issue. It is, rather, the unprecedented proposal in H.R. 811 for congress to use its constitutional authority to preempt state sovereignty in the conduct of elections in order to shift power not to itself, a representative body, but to a nonrepresentational executive commission of four White House appointees, and to permanently change the entire structure of governance and control in the United States.
Historically, Congress has taken the dramatic step of intervening in election administration when it held in doubt the states' intentions to carry out their duties to preserve and protect the rights of their voters. A GAO report ("The Scope of Congressional Authority on Elections" - March 2001) on this matter states:
"Congress has passed legislation relating to the administration of both federal and state elections, pursuant to its various constitutional powers. Federal legislation has been enacted in several major functional areas of the voting process, as described in more detail below. These areas include the timing of federal elections; voter registration; absentee voting requirements; accessibility provisions for the elderly and handicapped; and prohibitions against discriminatory voting practices."
But it is unprecedented for Congress to pass legislation that makes permanent an unchecked and unbalanced executive commission with broad powers and control in the matter of elections.