U.S. Commission on Civil Rights, Office of Civil Rights Evaluation 

Is America Ready to Vote?

Election Readiness Briefing Paper

April 2004

Is America Ready to Vote?

The vitality of America’s democracy depends on the fairness and accuracy of America’s election. Over two centuries our country has broadened the right to vote and sealed that right in law, making our government more accountable to the people, and more representative of the people.

When problems arise in the administration of elections we have a responsibility to fix them. Every registered voter deserves to have confidence that the system is fair and elections are honest, that every vote is recorded, and that the rules are consistently applied.

–President George W. Bush, upon signing the Help America Vote Act, October 29, 2002

With the 2000 presidential election, hanging, dimpled, and pregnant chads, and butterfly ballots entered the common lexicon. Election officials blamed substandard equipment, inadequate funds, and unreasonable deadlines for inaccurate registration rolls and other barriers that prevented many Americans from voting or having their vote count. In the four years since, federal and state legislatures, by statements and in some cases action, elevated elections as a public policy priority. Their efforts to do so will be put to the test in November 2004. Are voters who were disenfranchised in 2000 still vulnerable in 2004? Was there actual reform or, for the most part, talk and plans? If there was reform, will it minimize errors and correctly count ballots so that outcomes reflect the intent of the populace? Were laws passed and, more importantly, implemented to help overcome voting problems? Did local and national leaders fulfill their pledge to educate and enfranchise voters? On April 9, 2004, the U.S. Commission on Civil Rights (Commission or USCCR) will convene technical experts and others for a briefing that will offer answers to these questions.

POLITICAL PARTICIPATION IN AMERICA

The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case.[1]

The 15th Amendment to the Constitution was intended to eliminate voting barriers based on race, creed, color, or previous condition of servitude. In theory, its ratification in 1870 was a monumental civil rights development; in practice, minorities would continue to face obstacles to voting for the next century. The primary reason was that states circumvented the intent of the 15th Amendment by passing laws and allowing local practices that guaranteed blacks would remain disenfranchised. Making matters worse, Congress and the courts remained virtually silent during the ensuing decades.

Prior to the Civil War, only six states permitted black men to vote.[2] After the war, passage of the 13th Amendment abolishing slavery, and the 14th Amendment providing equal protection of the laws to all citizens, did little to end discrimination. Southern and border states, determined to preserve a white electorate, began immediately to erode guarantees of the 15th Amendment and passed myriad laws to eliminate the possibility of blacks tipping the balance of power through bloc voting. By the beginning of the 20th century, the hard won suffrage rights of blacks had practically been nullified. Perhaps the most invidious barriers to the right to vote were the seemingly neutral restrictions developed by states that had debilitating and devastating results on black voter registration.[3]

States adopted diverse practices and techniques to disenfranchise blacks, most of which centered on two important weapons: intimidation and arbitrary powers of local voter registrars.[4] Law enforcement officials, sometimes no more than deputized Ku Klux Klansmen, arrested civil rights workers on baseless charges, and mistreated them while in custody. Private citizens, complicit with police, also shot into or firebombed homes, churches, and other buildings; and abducted, tortured, and assassinated civil rights workers and blacks who dared to attempt to register. They also threatened economic insecurity; store owners refused to sell to blacks, banks declined credit, and property owners vowed to evict them from their homes. Local voting registrars manipulated the registration process to favor white applicants and eliminate blacks. One strategy was submission to literacy tests.

From the multitude of available instances of discrimination, a few have been chosen as illustrative of the double standard used. Six blacks with doctorates were ruled illiterate in Alabama and five black teachers, three of whom had master’s degrees, were judged too illiterate in a Mississippi city in which no whites ever failed the examination.[5]

Registrars helped whites to fill out applications, but not blacks, and rejected blacks’ applications on trivial bases such as underlining rather than circling a designation. They also refused to allow rejected applicants to review the bases for their decisions. Other laws required interpreting the Constitution and showing good character.

Mississippi whites were often given the following section to interpret: Section 8: “All elections by the people shall be by ballot.” Blacks have been confronted with sections such as the [following]: Section 182: “The power to tax corporations and their property shall never be surrendered or abridged by any contract or grant to which the state or any political subdivision thereof may be a party, except that the legislature may grant exemption from taxation in the encouragement of manufacturers and other new enterprises of public utility extending for a period of not exceeding five years, the time of such exemptions to commence from date of charter if to a corporation; and if to an individual enterprise, then from the commencement of work; but when the legislature grants such exemptions for a period of five years or less, it shall be done by general laws, which shall distinctly enumerate the classes of manufactures and other new enterprises of public utility entitled to such exemptions, and shall prescribe the mode and manner in which the right to such exemptions shall be determined.”[6]

Some registrars accepted as a demonstration of good character signatures from registered voters, who in some counties were all white. The state of Louisiana excluded on character grounds anyone who participated in sit-ins or civil rights demonstrations. States also redrew district lines to eliminate black majorities, changed some offices from elected to appointed, required proof of property ownership, and changed seats from district to at-large so that entire counties (proportionately more whites) determined outcomes.[7]

The spirit of laws passed in the late 1950s and 1960s was good. The 1957 Civil Rights Act allowed the Department of Justice (DOJ) to seek injunctive relief and enabled blacks to circumvent the remiss tactics of state voting officials. It also authorized nonjury trials for violators. The 1960 Civil Rights Act allowed federal judges to register eligible blacks who had been rejected by local officials. It also gave federal prosecutors access to voting records and required that voting data be retained for 22 months following every election. Later, Title I of the Civil Rights Act of 1964 forbade rejection of applicants for insignificant errors on registration forms and presumed that anyone who had a sixth-grade education was literate. One of the last changes in law was eliminating poll taxes, which denied the ballot from poor of all races. As late as the 1960s, poll taxes still existed and were finally banished under the 24th Amendment to the Constitution. However, these laws fell short of their promises when states continued to circumvent them.

The Civil Rights Acts of 1957, 1960, and 1964 . . . were unsuccessful attempts to compel state registration officials to apply their state voting standards fairly. Progress under these Acts was painfully slow, partly because of the intransigence of state and local officials and partly because of the delays inherent in the case-by-case litigation required under these statutes.[8]

Black enfranchisement was further obstructed by judges who procrastinated for months before conducting hearings, badgered civil rights attorneys and witnesses, and took months to render decisions during which times discrimination continued.[9] Obstinate and determined local officials, aided by judges, police and private citizens, had rendered case-by-case prosecution impotent.

Although judicial and legislative attempts were made to curtail the practices employed by the states in the 1940s and 1950s,[10] it was the Voting Rights Act of 1965 (VRA) that became the primary tool for equality in the voting booth.[11] In general, the 1965 act ensured that the same literacy standards would apply to whites and blacks and reduced acceptable suffrage requirements to age, residence, and criminal record. The Supreme Court decided that literacy tests were unfair. The VRA authorized federal voting examiners to bypass prosecution of individual complaints and, as a result, eliminate systemic discrimination. The VRA also gave DOJ authority to send poll watchers to counties that had experienced problems.

Specifically, Section 2 of the VRA prohibits minority vote dilution through intentional tactics and legislation aimed at weakening the voting strength of minorities.[12] Section 5 outlines the federal role in election oversight by requiring federal approval of state changes in voting procedures in areas that have a history of discrimination against racial and ethnic minorities. It is designed to prevent new forms of discrimination from taking effect that will diminish minority voting opportunities or rights. Section 5 also permits the federal government to send examiners to covered jurisdictions to ensure that registered voters are allowed to vote and that all votes are properly counted.

The VRA has been amended since its passage to broaden its coverage and strengthen its effectiveness. In 1975, an amendment permanently restricted the use of tests and devices for voter registration nationwide.[13] The law is applied today to prevent states and local jurisdictions from instituting at-large elections in majority-white jurisdictions, or from racial gerrymandering of electoral districts.[14] The 1975 amendments also stipulate rights for language minorities, mandating bilingual ballots and oral language assistance. In 1983, Congress again amended VRA to clarify that the proof of discriminatory intent is not required under Section 2 claims, and thus validated disparate impact claims.

Regardless of the terms of civil rights laws, their effects are muted in the absence of sufficient staff to enforce them.[15] VRA provides for federal observers to monitor procedures in polling places and at sites where ballots are counted. Observers are assigned to locations where it is likely that minority voters will be disenfranchised. The determination that minority voters may be disenfranchised is made by the Voting Rights Section of DOJ’s Civil Rights Division (CRD).[16] In 1963, CRD employed 20 attorneys, but after the Voting Rights Act passed, the government sent 50 attorneys to patrol the South during the 1966 general elections. Altogether, some 600 federal officials were assigned to Southern states to enforce VRA provisions. During that year and the following one combined, 1,500 federal observers attended elections in the South. The federal government, cognizant of the barriers to enfranchisement, was duty-bound to apply resources to eliminating them.[17]

By contrast, in 2001, the Voting Rights Section employed 36 attorneys,[18] and in the previous year DOJ had assigned 652 federal observers to monitor elections in 24 counties in 12 states.[19] In November 2002, 432 federal officials, including 108 DOJ attorneys, monitored elections in 26 counties in 14 states (see table 1).[20] The agency has not yet announced the level of resources it will devote to election monitoring in November 2004. DOJ considers many factors in deciding how many observers it will assign and where they will monitor. However, in the 1960s, as today, commitment of resources is at least one outward expression of federal priorities.

Some consider VRA the most effective civil rights law ever enacted and contend that the progress made, particularly as a result of redistricting efforts in the last decade, has been astonishing. Most historians agree that VRA increased the percentage of African Americans of voting age who registered to vote, and ultimately the numbers of African Americans elected to office. However, despite visible gains, other obstacles remain. In the era following its passage, civil rights groups have continued to challenge voting practices, such as at-large systems, which dilute the effect of the minority vote, and push for redistricting.[21] They have challenged and effectively removed old grandfather clauses and other forms of discrimination; yet, the 2000 elections proved that much remains to be done so that the rights of every eligible American are protected. For example, the disenfranchisement of Florida’s voters fell most harshly on black voters who, statewide, based on county-level statistical estimates, were nearly 10 times more likely than nonblack voters to have their ballots rejected.[22]

Voting rights history provides a relevant basis for resolving today’s election problems. Despite acknowledged technological difficulties, many of the problems in 2000, as through history, were traced to faulty registration procedures, variance in duties carried out by local election officials, and lack of local poll worker training. This paper will demonstrate that many of the problems that the Commission previously cautioned should be corrected yet prevail resonate with historical disenfranchisement, and require the focused attention of national, state, and local officials. Unless the government acts now, many of those previously disenfranchised stand to be excluded again.

PREVIOUS USCCR FINDINGS AND RECOMMENDATIONS ON ELECTION VULNERABILITIES 

In 2001, the Commission examined evidence from the controversial 2000 elections, as well as recommendations for change, and drew conclusions about the federal government’s responsibility to ensure voting rights for all Americans. Based on reports of widespread voter disenfranchisement in Florida, the Commission conducted an extensive public investigation into allegations of voting irregularities in that state. During three days of hearings and sworn testimony from witnesses, including state officials, local election officials, county supervisors, poll workers, and registered voters, the Commission probed accounts of problematic machinery, inaccessible polling places, and inexperienced poll workers. Fact-finding included examination of subpoenaed documents from witnesses who produced more than 118,000 pages of evidence. The Commission subsequently issued a report documenting its findings, Voting Irregularities in Florida During the 2000 Presidential Election, and made recommendations applicable to Florida and the nation.[23] In testimony before the Senate Committee on Rules and Administration, the Commission urged Congress to consider its recommendations from the Florida report and to legislatively articulate the duties of federal and state governments to promote the exercise of the right to vote.[24]

After collecting additional research and consulting other organizations that also studied the election, the Commission issued a subsequent report, Election Reform: An Analysis of Proposals and the Commission’s Recommendations for Improving America’s Election System.[25] In it, the Commission presented a comprehensive list of 18 recommendations for federal election reform designed specifically to protect the right to vote and have that vote counted.

The recommendations centered on assuring polling place access for all voters and offered advice for holding officials more accountable and rendering systems that register voters and record their intent more procedurally sound. Key recommendations included establishing a higher level of accountability for elections, developing national equipment and procedural standards, requiring provisional ballots, providing access for individuals with disabilities and limited English proficiency, reinstating voting rights for felons, and improving poll worker training and voter education. Congress subsequently included many of the Commission’s recommendations in a national reform bill that eventually became law—the Help America Vote Act of 2002.[26] Following is a more detailed summary of some of the Commission’s recommendations.

Accountability and Standards

In both its Florida and national studies, the Commission identified as a key impediment to the voting process the sometimes diffused and generally unclear delineation of authority and accountability for election problems. The fact that states manage elections allows for variable voting procedures and processes, leading to differential voter experiences and election outcomes. Moreover, accountability is often shared between state and local officials, and most states lack clear standards for the conduct of elections. In Florida, for example, the Commission found no uniformity in the Election Day responsibilities across the state’s 67 counties.[27]

Thus, to foster uniformity, the Commission recommended that the federal government establish minimum standards for equipment, error rates, absentee ballots, list maintenance, identity requirements, vote recounting, voter education, and reinstatement of felon voting rights. It said that mandatory standards should apply to provisional ballots, ballot kick-back features in voting equipment, the collection of election statistics, language assistance, and accessibility of polling places and voting materials.[28] In Florida, the Commission recommended that the secretary of state be legislatively required to ensure that the state is ready for elections, specifically that adequate resources are available, poll workers are trained, and voters are educated on voting processes.[29]

Provisional Voting

The 2000 elections revealed a widespread, but easily preventable, obstacle to enfranchisement: erroneous voter registration lists. Between 2 million and 3 million votes were lost in 2000 due to clerical and administrative errors on lists, despite improvements resulting from the National Voter Registration Act of 1993.[30] This problem could have been easily resolved with the use of provisional ballots, which would have enabled individuals claiming eligibility to cast a vote that would be counted upon verification. In 2000, only 19 states offered provisional ballots. In Florida, even though voting by affidavit was an option during the 2000 elections, it was not uniformly offered or available in every precinct, nor were poll workers or voters made aware of this provision.[31]

The Commission urged Congress to pass legislation requiring every state to use provisional ballots. Furthermore, the Commission said that such ballots should be verified and counted immediately after an election to ensure that they were represented in the cumulative results.[32] In addition, voters should have the right to an immediate appeal of a discarded ballot with resolution prior to vote tabulation.[33]

Voter Registration and Lists

The Commission found that registration deadlines vary greatly by state. In 2000, half of states required registration a month before an election; 19 states required registration 10 to 28 days before an election; six states allowed same-day registration; and one state did not require registration.[34] The 44 states requiring early registration could not maintain accurate lists of eligible voters. The startling display of ineptitude caused millions of names to be erroneously purged or incorrectly entered on registration lists across the nation, and as such, prevented eligible people from voting.

In Florida specifically, many voters arrived at the polls only to be told that their names were not on the registration list or that their voter applications contained errors. They were not given any opportunity to appeal the alleged errors or to challenge their absence on the rolls. Nor were poll workers able to communicate with election officials to verify eligibility or check the accuracy of the lists.[35]

The Commission found that the need for advanced registration and the miscommunication between state and local lists could be eliminated with real-time, statewide registration data systems. In addition, states should establish a toll-free telephone number that would allow voters to access their registration status and polling location well ahead of Election Day.[36] The Commission further recommended that states with early registration deadlines should examine the procedures of states that allow Election Day registration to determine what best practices could be implemented.[37] Moreover, as noted above, the Commission found that the use of provisional ballots could compensate for list inaccuracies until they were resolved.

Voter Identification

The Commission found that states established vastly different requirements for voter identification at the polls. Thirty states did not require identification, 14 states required some form of identification, and seven states reserved the right to require identification. Acceptable forms of identification varied and for some entailed a signature and others a state-issued photo ID, identity-bearing document, or a combination of items.[38]

Whether states had defined voter identification requirements or not, voters nationwide complained that specific groups, namely minority and immigrant voters, were singled out to produce identification. The Commission recommended that the federal government establish uniform national guidelines and that poll workers be adequately trained on requirements. Moreover, the Commission said that states must allow individuals who cannot produce valid identification to cast a provisional ballot.

Poll Worker Training and Voter Education

Many of the election problems that occurred could have been resolved immediately, if not prevented entirely, had poll workers been sufficiently trained and voters educated. This was particularly acute in Florida, where the Commission found poll workers who were unaware of voter rights and state procedures for assisting voters, as well as training inconsistencies from one county to the next. In Florida, the Commission also found limited financial support for voter education, resulting in inconsistent outreach to first-time voters and those with special needs.[39]

The Commission recommended that poll workers be trained to use all measures available under state law to enable registered voters to vote, including voting by provisional ballot, affidavit, and language and special needs assistance.[40] It also recommended that the state provide funds to educate voters on how to cast a vote properly, using means including public service announcements and advertisements.[41] Nationwide, the Commission noted the need for minimum federal voter education and poll worker training standards to cultivate consistency across counties and states.

Reinstatement of Ex-Felon Voting Rights

Although felon disenfranchisement figured prominently in Florida, ex-felons and individuals wrongly categorized as such were prevented from voting in other states across the country. In 2000, every state except two denied prisoners the right to vote; 29 states prohibited individuals on probation from voting; 32 states prohibited parolee voting; and 14 states prohibited some, if not all, ex-felons from voting.[42] The process for reinstating voting rights likewise varies by state, but is usually cumbersome, and ex-felons are seldom informed of their right to re-enfranchisement.

More than 36 percent of the total disenfranchised population is African American, and 13 percent of all African American men are disenfranchised due to a felony conviction. The Commission, concerned about the disparate impact of state disenfranchisement laws on minority voters, recommended that all states adopt legislation to restore the voting rights of former felons who have completed their sentences.[43]

Accessibility for Disabled and Limited-English-Proficient Voters

Federal law establishes that polling places must be accessible to individuals who have disabilities. It also stipulates that jurisdictions with large non-English-speaking populations must provide voting materials in common languages. Nonetheless, in the 2000 elections, thousands of voters found polling places and voting materials inaccessible and were thus disenfranchised. In Florida, for example, the Commission found that many voters who use wheelchairs could not easily access polling places, and many were turned away. Others with visual impairments had to have their ballots read to them because accessible technology was not available, resulting in a loss of the right to cast a vote in private. Likewise, many non-English-speaking voters could not cast a ballot because they were not provided legally required assistance.[44]

The Commission recommended that the federal government establish standards for alternate language materials and adopt quality assurance procedures.[45] Likewise, the Commission urged the federal government to develop accessibility standards for persons who have disabilities and provide adequate funds to ensure that all polling places are accessible.[46] In addition, the Commission recommended that federal equipment standards include programmable technology that facilitates multiple languages and access for disabled voters. Federal law should require states to report to the Department of Justice on their policies and procedures that ensure language and physical accessibility.

At the state level, the Commission recommended that poll workers be trained on providing required assistance to voters with disabilities and limited English proficiency. States should ensure that there is uniformity across precincts and certify, at least 30 days before an election, that polling places are accessible.[47]

Enforcement

In its examination of Florida, the Commission found that disenfranchisement most harshly affected African American voters, who were nearly 10 times more likely than nonblacks to have their ballots rejected and were often prevented from voting because their names were erroneously purged from registration lists. Moreover, poor communities with large minority populations were more likely to use voting equipment with high ballot spoilage rates.[48]

Despite the obvious disparities, evidence suggests that voting rights law enforcement is haphazard, and responsibility for elections is often decentralized, thus obscuring accountability. The Commission recommended that the federal government, specifically the Department of Justice, strengthen its enforcement efforts and initiate litigation against election officials:

• whose actions or inactions result in the disproportionate inability of certain groups to vote and have their votes counted;

• who engage in list maintenance activities that result in the denial of equal access to the political process;

• who fail to provide training to poll workers and the tools necessary for successful operation of polling places;

• who fail to educate voters on registration and voting processes;

• who implement practices that have adverse effects on voters with disabilities or language barriers; and

• who prevent otherwise eligible voters from participating in elections either by virtue of criminal record or by failure to offer provisional voting.[49]

Federal officials are not always present when voting rights violations occur, thus citizens should be able to file complaints, and be assured that their complaints will be acted upon and that no one will retaliate against the originator. The Commission found that neither state nor county entities had established procedures for monitoring and documenting voting irregularities and complaints. It found that complaints are usually referred back to the official alleged to have committed the violation. The Commission recommended that Congress delegate to U.S. attorney offices in each state responsibility for complaint resolution. Additionally, the Commission said that states should develop clear strategies for responding to complaints and publicizing voter rights.[50]

Equipment

The Commission examined the voting technology used nationally and found massive voting equipment problems throughout the United States. In Florida, different systems with varying error rates were used throughout the state. Poor communities and communities of color were more likely to use equipment with higher vote spoilage rates.[51] African American voters cast approximately 54 percent of the spoiled ballots, despite composing only 11 percent of all voters.[52] Improving voting technology has since been a focus of reform efforts, with many states searching for replacements for their old systems and the federal government grappling with minimum standards.

The Commission did not endorse any specific voting equipment brand, but it did recommend that electronic, precinct-count tabulation systems be used.[53] It also recommended that the Federal Election Commission (FEC) maintain the statutory authority to develop technology standards and guidelines. For example, equipment that notifies voters when ballots are invalid and provides the opportunity to make corrections should be mandatory. In addition, the Commission recommended that FEC develop standard requirements for technologies that facilitate accessibility for voters with disabilities and limited English proficiency.[54]

THE HELP AMERICA VOTE ACT OF 2002: A FEDERAL-STATE PARTNERSHIP

The Help America Vote Act is a civil rights act for all Americans, seeking to improve voting access and fairness for all. Its technical provisions on voting equipment and election administration may be mundane compared to the groundbreaking efforts of civil rights legislation of the 1960s. The right to vote has little meaning, however, if that promise is lost to old voting machines that cannot read properly cast ballots or illtrained poll workers who incorrectly inform a citizen that he or she has not registered to vote.[55]

Given all the problems uncovered in Florida and nationally, and finding that regulation of the federal election process is within the scope of congressional authority, the Commission called upon Congress to establish guidelines and impose requirements on state election systems to ensure fairness and accessibility.[56] The Commission urged Congress to act swiftly to set milestones and allocate sufficient funding for the development and delivery of federal election guidelines.[57] As the following will illustrate, Congress did not act swiftly, but took two years to pass election reform legislation, and state implementation shows signs of being equally retarded.

Nearly two years after the November 2000 elections, and after a lengthy and divisive debate, Congress passed the Help America Vote Act of 2002 (HAVA), and President Bush signed it into law on October 29, 2002.[58] The legislation required compromise from both parties in Congress. Despite that some of its provisions concerned civil rights advocates, the bill eventually gained bipartisan support.

HAVA is a historical measure, representing the first large-scale federal investment in state and local election administration in U.S. history. HAVA authorizes distribution of $3.86 billion in federal aid over three fiscal years ($2.16 billion in 2003, $1.05 billion in 2004, and $650 million in 2005) to states for improving elections. HAVA sets dates and standards for rendering voting equipment, registration lists, and general election administration fair, accurate, and representative of the needs of America’s populace.

However, a year and a half since HAVA passed, many mandated milestones remain unmet. For example, HAVA required that, by 2004, states offer provisional ballots to voters, verify identities of first-time voters who register by mail, post voting information at polling places, and establish complaint procedures for cases in which voters experience problems at the polls.[59] As this paper will demonstrate, most states have passed legislation necessary for those actions, but few have built the infrastructure, made purchases, or acted to implement all of the law’s requirements.

Although states are responsible for implementing election reform and ensuring compliance with HAVA, the federal government has the responsibility to provide funding and guidance to the states. HAVA thus represents a federal-state effort, requiring the two to work in tandem. The following discussion will outline federal and state responsibilities, as well as the problems federal and state governments have experienced in implementing specific provisions.

The Federal Role in Helping America Vote

Funding

Reform of the magnitude prescribed by HAVA requires significant resources. Thus, Congress determined the level of funding it would grant states to enact the law’s provisions. The amount that Congress eventually authorized would go to states, $3.86 billion over three years, was the result of compromise. Of that amount, $650 million was promised upfront for improving state election systems.

Title I of HAVA establishes that the General Services Administration (GSA) will administer two grant programs, outlined in Sections 101 and 102, with funding evenly split between them. Section 101 provides funding to states to improve general election administration, for examples: voter education, poll worker and election official training, improving voting technology, improving accessibility for limited-English-proficient (LEP) and disabled voters, and establishing state complaint centers. The law allows states to apply for grants and determine how to use the money they receive. Award amounts are based on a state’s voting-age population as a proportion of the total U.S. voting-age population, but are no less than $5 million.[60]

Section 102 grants specifically fund punch card and lever machine replacement. New systems installed using Section 102 funding must meet the requirements outlined later in the legislation (Section 301). HAVA authorizes $4,000 per precinct for punch card and lever machine replacement. States that received Section 102 funds to purchase and install new equipment must do so by November 2004 or request an extension; however, the extension period may not exceed the first election after January 1, 2006. Any state not in compliance by the original or authorized extended deadline must return funds. HAVA does not require states to discontinue use of punch cards or levers, but those that choose to continue using such systems are ineligible for Section 102 funds.

In addition to the $650 million provided under Sections 101 and 102, HAVA authorizes $3 billion for required election improvements.[61] In addition to these “requirements payments,” Title II of HAVA sets aside funding for specific purposes:

• HAVA provides $50 million for FY 2003, $25 million for 2004, and $25 million for 2005 to ensure voting access for persons with disabilities. The Department of Health and Human Services (HHS) is responsible for making payments to eligible state and local governments to improve accessibility, establish outreach programs for persons with disabilities, and train election officials on how to best promote access and participation.[62]

• Congress authorized $20 million in 2003 for technology research grants to improve quality, accuracy, reliability, and security of voting equipment and systems. State applications must include plans for accommodating LEP and disabled voters. States that receive grants must submit reports on grant expenditures and other related activities.[63]

• For 2003, $10 million was authorized for equipment testing pilot programs. Tests must respond to LEP and disabled voter needs.[64]

• HAVA authorizes $10 million per year through 2006 for each state to ensure registration and voting access for persons with disabilities.[65] Public and private nonprofit organizations can receive funding to train election officials and evaluate systems for accessibility.

Congressional Appropriation

Although HAVA authorizes significant funding for election reform, Congress has been slow to appropriate funds accordingly.[66] Not until February 2003, four months after HAVA became law, did Congress finally pass appropriations legislation providing $1.5 billion for its implementation. This amount represents 30 percent less than the $2.16 billion promised for 2003, as the White House imposed a spending cap limiting appropriations.[67] Title I money (for replacing equipment and improving election administration) was funded in full at $650 million. The remaining $850 million was earmarked for compliance with Title III (technology standards, provisional ballots, registration systems, and voter identification).

President Bush requested only $500 million for election reform in 2004, despite that HAVA authorized more than $1 billion. After political wrangling and vocal debate in Congress, $1.5 billion was actually appropriated for 2004. However, the 2004 Omnibus Appropriations package was signed into law on January 26, 2004, after the deadline for meeting many of the law’s requirements had passed, and the money has not yet been fully distributed to states.[68] For 2005, the President requested $65 million: $40 million for grants to states, $10 million for federal administration, and $15 million for accessibility grants to assist voters with disabilities.[69] The 2005 budget is still being negotiated in Congress.

Disbursement to States

One of the keys to reform is passing the money to the states to purchase equipment and set up infrastructure to respond to mandates. This process has, by all accounts, been slow. By mid-June 2003, GSA had disbursed almost all of the $650 million in early money to the 55 jurisdictions covered by HAVA.[70] Another $15 million was appropriated to reimburse some states that adopted new voting technology early. HHS paid out $13 million to states for improving voting systems for individuals with disabilities, and another $2 million to state disability protection and advocacy systems. An additional $830 million appropriated in 2003 for “requirements payments” has not been distributed.[71] Thus far, approximately 18 percent of the total $3.86 billion authorized (for fiscal years 2003–2005) has been distributed to states.

Table 2. Authorized, Appropriated, and Disbursed Funds

Without the money transferred to state coffers yet, it will be difficult if not impossible for states to have all systems in place by November. The Election Assistance Commission (EAC), discussed in greater detail below, was supposed to be established and acting independently within 120 days of HAVA’s passage (that is, by February 26, 2003). However, it was not until December 2003—nearly 10 months behind schedule—that its members were confirmed by Congress.[72] EAC is responsible for reviewing and approving state grant requests.

EAC has an operating budget of only $1.2 million for 2004.[73] Publishing state plans in the Federal Register alone will consume $800,000 of that budget.[74] Nonetheless, in a February 2004 meeting with the National Association of Secretaries of State, the EAC chair indicated his intent to review state compliance plans by the end of February and publish them in the Federal Register shortly thereafter, so that funds could be distributed to states by mid-May.[75] This includes states that requested waivers for registration databases and equipment replacement, which also had to submit plans and are still eligible to receive funds.

The revised EAC timeline for distributing funds leaves states less than six months to prepare for the intractable deadline: Election Day. Moreover, while the funding is critical, states are also looking for federal guidance before purchasing equipment, setting up registration lists, and complying with other HAVA requirements.

Guidance

Once states are given the resources to initiate reforms, they should also receive guidance to ensure that they are in compliance with HAVA and that the election systems they select are the most appropriate. The federal government has an obligation to help states use funds productively. To do so, HAVA gave EAC authority to oversee and guide national election reform.

EAC is set up such that two of its four members at any given time are affiliated with different political parties. Members are appointed by the President with the advice and consent of Congress. The majority leader of the Senate, the minority leader of the Senate, the speaker of the House, and the minority leader of the House each submit a candidate for consideration by the President for each vacancy affiliated with his or her political party. Commissioners will generally serve for four years, but to establish staggered terms, two of the initial members (not affiliated with the same political parties) were appointed to serve two-year terms.

Under EAC are three assisting bodies: the EAC Standards Board, the EAC Board of Advisors, and the Technical Guidelines Development Committee. Their composition is as follows:

• The EAC Standards Board: 110 members, composed of one state election official and one local election official from each of the 55 states/territories. The two representatives from each state cannot be of the same political affiliation. Nine of the members will serve as an executive board.[76]

• The EAC Board of Advisors: 37 members appointed by government and private organizations (including the Commission), voter advocacy groups, and members of Congress.[77]

• The Technical Guidelines Development Committee: 15 members, chaired by the director of the National Institute of Standards and Technology (NIST).[78]

HAVA directs the two boards to review voluntary guidelines under consideration by EAC and to assist with the development of recommendations for procedural and technological election standards. The technical committee’s charge is to develop voluntary equipment guidelines for states, including computer and other voting technology security, fraud prevention, voter privacy, systems to accommodate persons with disabilities, and remote access/Internet voting. The committee’s first set of recommendations is due nine months after EAC members are appointed. EAC will vote on and adopt technology guidelines after consideration of comments from the two boards. EAC has not yet developed new guidelines for election equipment; existing Federal Election Commission guidelines will remain in effect until it does.

EAC guidelines, once developed, will be voluntary for states and are not a prerequisite to receiving funds, although previously mentioned Section 102 restrictions apply. However, states must submit plans to EAC explaining how they will expend grants. In addition, six months after the end of the fiscal year, states must report how funds were actually spent.[79] In this way, HAVA mandates federal oversight for federal expenditures.

Among other duties, HAVA assigns EAC responsibility for testing and certifying voting equipment using accredited laboratories.[80] States may voluntarily subject their systems to testing. Under the legislation, EAC also must study technology, ballot design, voter registration, and provisional voting and submit reports to Congress and the President.[81] On a periodic basis, as determined by EAC, the agency will conduct studies with the goal of promoting voting and election administration methods that are most convenient and accessible for overseas voters, individuals with disabilities, and LEP voters; and that are nondiscriminatory and afford eligible voters an “equal opportunity to vote and have that vote counted.”[82]

Title III directs EAC to adopt voluntary guidance for voting technology standards by January 1, 2004, for provisional voting by October 1, 2003, and for voter registration lists by October 1, 2003. HAVA establishes that the recommendations must be reviewed and updated at least once every four years. As the HAVA timeline below indicates, however, EAC appointments were delayed 10 months; thus, it has not met any of the milestones so far. Nor has EAC begun a comprehensive review of the areas in which states are dependent on guidance before they act, such as equipment and registration list technology; it has offered no commitment for when it will make guidelines available. EAC met for the first time as a formal body on March 23, 2004, but it is still without office space, designated staff, or basic administrative infrastructure.[83]

Enforcement

The federal government has the authority, indeed the responsibility, to enforce HAVA implementation at the state level and seek redress for violations. Title IV establishes the framework for addressing state failure to comply with the law’s requirements and existing voter rights laws. The attorney general of the United States may bring a civil action seeking declaratory or injunctive relief against any state not in compliance with the uniform and nondiscriminatory technology and administrative requirements.[84] Even states that do not use HAVA funds must certify to the attorney general that they are meeting Title III requirements by submitting a compliance plan.[85] Plans from nonparticipating states were due January 1, 2004.

Enforcement of HAVA’s provisions poses major civil rights concerns. For instance, it is impossible to determine whether every poll worker in every precinct knows the conditions under which provisional ballots must be furnished and acts accordingly. There is evidence that even in states where provisional ballots have always been available, poll workers have not routinely provided them to voters.[86] The Department of Justice is charged with monitoring state compliance with HAVA, but it is unclear whether Congress has given the agency the resources necessary to conduct widespread monitoring. The Commission also has statutorily granted monitoring responsibilities and should likewise be given the resources to monitor HAVA compliance, along with the Voting Rights Act, and other federal voting legislation it has traditionally monitored.

The Status of Federal Implementation

In general, the federal government has three main responsibilities under HAVA: funding, guidance, and enforcement. Delays in implementation, however, have prevented these responsibilities from being met, and in turn have stymied state progress. Table 3 presents a timeline of HAVA’s statutory requirements. It illustrates that, of the 22 target dates that have lapsed since the passage of HAVA, only five were met on time. The majority of the incomplete or tardy tasks rest with the federal government. Congress’ failure to appoint EAC members in a timely fashion has repercussively affected other deadlines, specifically the dissemination of guidance on provisional voting, voter registration databases, and voting technology standards.

As the following discussion will indicate, absent these guidelines, states have been hesitant to move forward with reform. States have generally complied with the reporting requirements and the deadlines for requesting extensions. However, absent analyses of state reports, it is difficult to determine whether many HAVA-prescribed activities have actually occurred. Table 3 shows that there are five such requirements that states may or may not have successfully implemented, including, for example, the adoption of provisional voting procedures.

Table 3. Help America Vote Act Timeline