Background Paper on the Help America Vote Act 1

I. Constitutional Roles in the American Electoral Process Responsibility for election administration in the United States is divided among federal, state and local governments. Article I, 4, cl. 1, of the Constitution provides Congress the authority to set the Times, Places and Manner of Congressional elections, and Article II, 1, cl. 4, allows Congress to designate the Time for the choosing of Presidential Electors. Since the Civil War and subsequent enactment of the 14th and 15th Amendments to the Constitution, Congress has enacted laws that require the inclusion of previously marginalized and disenfranchised groups in the voting process, ranging from individuals who were once slaves (1870) to overseas citizens (1987). The Congress also has extensive authority to prevent discrimination in access to voting, and it has empowered the U.S. Department of Justice to exercise that power in state and local, as well as federal, elections. However the primary responsibility for election administration falls to the states and localities. According to the Congressional Research Service, although the Constitution is silent on various aspects of the voting process, the Constitution seems to anticipate that states would be primarily responsible for establishing election procedures.2 For this reason Congress and the federal government have historically maintained a hands-off approach to election administration. In practice, this has meant that the administration of elections, including regulation of political parties, ballot access, and registration procedures, establishment of polling places, provision of election-day workers, counting and certification of the vote, and all costs associated with these activities, are the responsibility of the States.3 State and Local Government Electoral Responsibilities A recent report by the National Conference of State Legislatures found considerable variation in how states administer elections. Both state and local governments share the costs of running elections, with counties providing the bulk of the money In almost every state, it is the state government that has final authority on election administration [with duties] [to] approve voting equipment (43 states), promulgate rules and regulations for the conduct of elections, certify official election results, approve ballot design,
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provide instruction and training to local officials, investigate complaints and voting irregularities, and approve statewide ballot language.4 The secretary of state acts as the senior elections official in 46 states. In Hawaii, Alaska, and Utah, the lieutenant governor assumes the role of the secretary of state. Secretaries of state are elected in a partisan election in 36 states, and in seven states they are appointed by the governor and approved by that states legislature (except in Texas, where there is no legislative approval.) The secretaries of state of Maine, Tennessee, and New Hampshire are appointed solely by the legislature. In 15 states, a state board or state elections commissioner oversees the administration of elections, not the secretary of state. For example The New York State Board of Elections is independent of the secretary of state and was formed nearly 30 years ago. The board is made up of four members appointed by governor and the legislature. The North Carolina State Board of Elections is the state agency charged with overall responsibility for administration of the election process. It is the only statutory, bipartisan, quasi-judicial supervisory board in North Carolina state government. The governor of North Carolina appoints the five members of the board. In Illinois, the governor appoints four members from his own political party and selects four from a list of nominees submitted to him by the highest ranking official of the opposite political party. Board members serve staggered, four-year terms.5

The Role of Local Government Local governments primary responsibilities in election administration are to count and tabulate votes and report results to the state, recruit, hire and train election day workers, handle voter registration and maintain voter rolls, purchase equipment and supplies, and prepare ballots for the election.6 In many of the nations 3,066 counties, a board of election commissioners provides administrative oversight of election practices, while in some states, municipalities oversee elections. Election commissioners are placed in office by several means - many are elected in their jurisdictions, while others are appointed by county commissioners or appointed directly by the states governor. In a majority of states, local election officials, no matter how selected, are expected to conduct their duties in a nonpartisan manner. The underlying rationale is that the separation of partisan politics from the electoral process is important to maintaining legitimacy and fairness in elections.

II. The Help America Vote Act

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In response to the serious problems experienced during the presidential election of 2000 (i.e. reports of hanging chads, uncounted ballots, inappropriately disenfranchised individuals, and poorly conducted recounts), lawmakers and citizens rights advocates crafted a law to address these shortcomings. On October 29, 2002, President Bush signed the Help America Vote Act (HAVA), which created standards and authorized (but did not appropriate) $3.9 billion in federal money to modernize and standardize the U.S. election process. HAVAs infusion of federal money into the states is intended to upgrade the infrastructure of local electoral systems. A primary goal of the Act is to replace old punch-card and lever voting machines with new, touch-screen electronic voting technologies ( 102), authorizing $325 million in one-time payments to states for this purpose. The Act also requires the creation of statecentered voter registration databases to help protect against voter fraud and registration errors that may prevent individuals from voting ( 303). It sets standards for polling place procedures ( 301), establishes disability access protocols ( 261-263), requires military and overseas ballot collecting and recording ( 701-707), and creates a new provisional balloting requirement to ensure that all qualified voters are able to vote ( 302). The Act also seeks to promote voter turnout, countering national trends towards low voter participation through the promotion of voter education programs. (See chart on following page for a summary of these provisions.) The Federal Election Assistance Commission The Help America Vote Act authorized the creation of a new, independent federal entity, the Elections Assistance Commission (EAC), to help aid in the distribution and oversight of HAVA funding. The primary duties of the EAC, as outlined in 202, are to:

Function as a clearinghouse for election administration information Set guidelines, conduct tests and certify programming for election systems hardware and software Provide information and guidance to the states on the management of the payments and grants administered by HAVA Develop and administer studies to promote the effective administration of Federal elections, address military voter outreach, and explore the impact of the new identification requirements on voters who register by mail Develop and carry out the HAVA College Program to encourage university students to assist as nonpartisan pollworkers or assistants Provide an annual report to Congress on its activities

The four EAC commissioners, who must have experience in election administration, are appointed by the President with the advice and consent of the Senate to four year terms. Any action taken by the Commission must have the approval of at least three commissioners.

Provisions of the Help America Vote Act

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*Funds states to improve election administration, including replacing punch card or lever voting machines *Creates an Election Assistance Commission (guidelines, audits) *Establishes voting system standards, and requires testing and certification of hardware and software *Promotes research on voting technology improvements *Requires states to develop plans in order to receive certain funds *Assures access for individuals with disabilities *Establishes provisional voting *Promotes voter turnout through education *Requires states to develop computerized statewide voter registration lists *Promotes voting by overseas voters and absent uniformed services voters * Creates a college program to encourage students to be pollworkers, and a national student and parent mock election

The Chair of the Commission is Grace Hillman; the three other commissioners are Dr. DeForest Soares, Jr., Paul DeGregorio and Ray Martinez.
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Audits and repayment: Section 902 of HAVA requires each grant recipient to keep complete records of expenditures and other project funding sources. Grant recipients may be audited by the state office making the grant or payment (the Secretary of State in California). The EAC determines frequency of federal audits of state expenditures, and may conduct a special audit or special examination upon a vote of the Commission. If the federal Comptroller General determines as a result of an audit that a recipient is not in compliance with the requirements of the program, or that an excess payment was made, the recipient must repay that amount. HAVA Requirements and the State Plan HAVA does not create a one-size-fits-all program, but instead is designed to pair uniformity with flexibility. Before receiving federal HAVA funding, states must create state-specific plans to address how they will spend the money, and how they intend to conform to HAVA guidelines. The diversity of American states in population size, demography, geography underlies the requirement that each state create a plan to address its own unique election needs. Section 255 (a) of HAVA requires that each state plan be created with broad input. The chief state election official is to consult with a committee composed of election officials from the states two most populous jurisdictions/districts and with other state electoral officials, stake holders (i.e. disability groups, voter advocacy organizations) and appointed citizens. (See http://www.nass.org/electioninfo/HAVA_stateplans.html for links to many state plans.) Californias committee is comprised of 24 members representing many different groups, ranging from labor/union activists, disability rights advocates, minority and womens rights representatives, and experts in elections and voting technologies. Californias state plan, My Vote Counts, is on the Secretary of State website (http://www.ss.ca.gov/elections/HAVA_finalplan_12-03.pdf). After a preliminary state plan is completed, it is submitted for publication in the Federal Register [HAVA Sec. 255 (b.)] The plan is then available for public review and comment for 30 days before it is submitted to the HAVA-created Election Assistance Commission. The Commission either approves and publishes the final plan in the Federal Register and authorizes funding, or returns the plan to the states chief election official for modification. Californias state plan was submitted in September of 2003, and published in the Federal Register on March 24, 2004. Computerized Statewide Voter Registration Requirements One of the most daunting (and expensive) requirements of HAVA is the implementation of a statewide computerized voter registration database. Section 303 of the Act requires states to implement in a non-discriminatory manner, a single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained and administered at the state level.

The computerized list must contain the name and registration information of every legally registered voter in the state and must assign a unique identifier to each legally registered voter in the state. It must be coordinated with other state agency databases and serve as the official voter registration list for the conduct of all elections for federal office in the state. Any election official in the state may obtain immediate electronic access to the information contained in the computerized list, and all voter registration information obtained by any local election official must be electronically entered on an expedited basis at the time it is provided. The chief state election official must supply support so that local officials may enter the voter information electronically and in an expedited manner.7

HAVA requires the states to follow an updated and uniform protocol for maintaining an accurate voter registration list by removing duplicate and ineligible voters, while adhering to the guidelines of the National Voter Registration Act. Furthermore, HAVA requires that no registrant may be removed solely by reason of failure to vote. Safeguards must be in place to ensure that eligible voters are not removed in error.8 States are required to establish a voter registration list by January 1, 2004, but may appeal to the EAC for a waiver until January 1, 2006. Currently only 15 states have implemented a statewide voter registration database (Alaska, Arizona, New Mexico, South Dakota, Louisiana, Minnesota, Michigan, Kentucky, West Virginia, Georgia, South Carolina, Connecticut, Massachusetts, Delaware, and Hawaii.)9 According to information collected by the California Secretary of State, the Election Assistance Commission has indicated that only New York will not be able to meet the 2006 deadline.10 Californias current statewide voter database, Calvoter, has been determined by the Secretary of State to not comply with HAVA. In an October 22, 2004, letter to the Elections Assistance Commission, the Secretary of State (SOS) indicated that because of the magnitude and complexity of creating a new statewide voter registration database, the SOS will be relying extensively on outside consulting firms to provide the necessary expertise. 11 More recently, however, the SOS has suggested that it is reconsidering upgrading Calvoter to meet the HAVA requirements. A survey by the National Association of Secretaries of State finds that over half of the responding states will spend up to 40 percent of their HAVA funds on developing a statewide voter database, and one in five states will spend up to 70 percent.12 The California HAVA plan proposes spending 15.1 percent of the states expected $350 million in HAVA funding on the creation of a statewide voter database. So far, California has received $181.6 million, about half that amount. It is uncertain whether Congress will appropriate the rest.

Overseas, Military Voting Requirements

Section VII of the HAVA sets clear guidelines for the states and the military to administer overseas and absentee military voting. Under HAVA, the Secretary of Defense and various military administrators are given specific duties:

The Secretary of Defense is to ensure that military postal authorities transmit voting materials expeditiously, with measures taken to ensure a postmark or other official proof of mailing date on each ballot collected at any overseas location. The Secretary is to also ensure that these new measures do not delay the delivery of the ballots to their final destination. Within six months of enactment, the Secretary shall report to Congress on how this will be done. The Secretary of each military division is to provide notice of the last date that military personnel can mail their ballots and still have them arrive at the state/local office before a general election; ensure that all military personnel and their families have easy access to voting information, and, make the national voter registration form prepared for Uniformed and Overseas absentee voting available at enlistment.13

The states are required by HAVA to ensure an effective process for receiving overseas and military ballots: The states must establish a single office to distribute and disseminate voter education and ballot information for overseas and military voters. HAVA recommends (but does not formerly require) that this office be responsible for the gathering and processing of ballots from such voters. After January 1, 2004, a state cannot refuse to accept or process (for an election of federal office) any valid voter registration or absentee ballot application simply on the grounds that it arrived too early. If any application is rejected, pursuant to Sec. 707 (d) the State shall provide the voter with the reasons for the rejection. Additional HAVA requirements outline an overseas and military voting audit and reporting process that must be open for public review (Sec. 705)

According to an October 22, 2004, letter to the Elections Assistance Commission14, Californias Secretary of State indicates that the single office requirements for voter outreach and processing ballots have been completed, and that an overseas/military voter registration and information program is underway with Department of Defense and local election officials. A new state law (AB 2941, Bates) will enable overseas/military personnel to vote via facsimile. (This law is currently being contested in court.) The letter also reports that funding delays have not substantially hindered implementation of HAVAs overseas and military voter requirements.

Voter Education/Information

HAVA requires state plans to describe how the State will provide for programs for voter education, election official education and training, and poll worker training ( 254). Since the language of HAVA is limited in regards to the content of voter education programs, states have taken different approaches. California has adopted a unique approach by authorizing the Secretary of State to grant federal funds to non-governmental organizations for voter outreach and education. According to the Secretary of States HAVA California State Plan 2004 Update, funding for voter education, including grants, is estimated to be $30 million but actual costs may be less or more, with continued ongoing costs. The majority of the state plans reviewed for this analysis (New Mexico, Washington, Arizona, Colorado, Delaware, Connecticut, Maryland, Kentucky, Maine, and Utah) do not authorize the establishment of any new voter outreach programs. Instead their HAVA plans seek to enhance traditional means of voter education updating voter informational websites, pamphlets, etc. Only six of the 18 surveyed state plans (Oregon, Michigan, Nevada, Idaho, Florida, and California) outline goals for introducing new voter outreach programs. In these states, state HAVA plans support partnerships between the state and non-governmental organizations for voter outreach, but the guidelines for such partnerships vary significantly.

Pennsylvania grants HAVA funding to non-profit and non-governmental agencies. In Montana, political parties qualify for grants producing non-partisan materials.15 Michigan, Florida, Oregon and Nevada have adopted regulations restricting the types of non-governmental organizations that can receive HAVA funding. Idahos plan calls for the formation of outreach partnerships with public and private organizations, but there is no discussion for allocating or granting funding to these non-governmental groups. Nevadas state plan proposes several programs and projects to encourage voter education. These programs are required to be bi-partisan support[ed] and non-partisan efforts. Michigan incorporates nonpartisan wording in describing the desired community-based organizations with which to partner for voter outreach. Oregons state plan sets very clear guidelines for eligibility and expenditures. These include partnerships or other collaborative efforts with non-partisan, non-profit, community based organizations. Activities eligible for grants are related only to voter outreach in the following subject areas 1. How to register to vote.

2. Compliance with federal identification requirements for registering through the mail. 3. How to vote in Oregon, particularly information for young or new voters. 4. Who is eligible to vote absentee and how to vote absentee. 5. How to correct your ballot or obtain a replacement ballot. 6. How to report potential election fraud. However, according to correspondence between the Oregon and California Offices of the Secretary of State, Oregons policy of granting funding for voter outreach has been repealed.16

Floridas Standards for Nonpartisan Voter Education (Rule 1S-2.0333, F.A.C.) limit any election-related funding to nonpartisan entities. Arkansas, Indiana, Louisiana, North Dakota, Massachusetts, Montana, Pennsylvania, and West Virginia provide grants primarily to disability groupsfor voter accessibility issues.17

Californias Implementation of Voter Education/Outreach under HAVA The Governor signed SB 613 (Perata) on October 11, 2003. In regards to voter education/voter information, 2131 of the Elections Code gives the Secretary of State broad power to provide grants to local elections officials, nonprofit corporations, and unincorporated associations to conduct voter outreach and voter education programs, or to increase accessibility for eligible voters with disabilities, using funding provided by the Help America Vote Act of 2002. Californias state plan, My Vote Counts, states that funding for voter education will be used to develop outreach programs under the Office of the Secretary of State, to encourage elections officials to work with community-based, employee-based, campusbased and similar organizations to educate elections officials and voters. The state plan provides that HAVA funds be available to those entities through a grant issuing process. The only criterion in the plan for receiving the funds is that the programs and organizations (governmental or non-governmental) must demonstrate expertise in voter training and education, and poll worker recruitment activities. There is no clear definition of what constitutes expertise. Under an emergency exemption to competitive bidding requirements granted by the Department of General Services in September 2003, the SOS executed 46 consultant contracts totaling $1.5 million to assist in the implementation of HAVA, according to the State Auditor.18 The office used the no-bid exemption to hire consultants to perform voter outreach and registration, implement media campaigns, handle public relations, and monitor poll workers. The State Auditor found that 37 percent of the consultant activity reports submitted between December 3, 2003 and September 5, 2004 describe partisan

activities. The audit report finds that the applicability of state and federal laws prohibiting state employees from engaging in partisan activities is unclear when applied to consultants.19 On May 14, 2004, the Secretary of State (SOS) issued an IRFP (Informal Request for Proposal) to carry out a voter education program under HAVA. Applicants were to be nonprofit corporations and/or incorporated associations, and to demonstrate expertise and experience with projects and similar tasks Proposals were to include a description of the targeted group of individuals, the geographical area, and to give assurance that the project would be non-partisan. Although a number of organizations applied, no grants were given due to funding delays. Californias HAVA expenditures The State Auditor reports that the state has received $180.6 million in HAVA funds, of which $81.2 million has been authorized for expenditure, $46.6 million spent or obligated, and $134 million unspent.20 In response to a request from the JLAC, in early December the SOS provided the following timeline of HAVA funds received from the federal government and expended to date.

HAVA Funds Receipt and Expenditures

(provided by the Secretary of State) Funds Received from the Federal Government HAVA Title I

Minimum Payment$5 million 101 and 102$79.7 million

April 2003 June 16, 2003

HAVA Title II, 261 (Election Assistance for Individuals with Disabilities Grants)

Received $1.4 million but spending authority not yet received Received $1.0 million but spending authority not yet received

September 2003 May 2004

Title II, 251 (State Plan) Received $94,559,169 but spending authority not yet received June 18, 2004

HAVA Funds Expended, Obligated or Appropriated Title I, 101 Discretionary Funds--$27.3 million received from the federal government

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$6.9 million was expended or obligated during 2002-03 and 2003-04 $1.7 million for administration was appropriated by Budget Act of 2004. $4.6 million was expended or obligated during 2004-05 to reimburse counties for security measures implemented at November 2004 election, authorized by DOF and JLBC pursuant to Budget Control Act of 2004. $9.9 was expended or obligated during 2004-05 to reimburse counties for voter education and poll worker training for November 2004 election. $290,000 was expended or obligated during 2004-05 for parallel monitoring at November 2004 election.

Title I, 102 (County Punch Card Buyout Funds) Of the $57.3 million received (one time allocation to state) from the federal government: $51.1 million has been paid to counties for replacement of punch card voting machines Remaining amount will be provided to counties when county applications are received and/or spending authority is obtained

The SOS reports that there have been no other expenditures or obligations of HAVA funds, pending receipt of spending authority pursuant to the Budget Act of 2004.
Note: California has received $181.3 million in HAVA funding, about half of what it would receive if Congress authorized full funding. Given the federal budget deficit, however, there is considerable concern that additional HAVA funds will not be forthcoming.

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Tory Francisco, a student in the University of Californias Sacramento program, authored most of this Background Paper under the supervision of Joint Legislative Audit Committee Chief Consultant and report co-author, Dr. Charlene Wear Simmons. 2 Congressional Authority to Standardize National Election Procedures. United States Congress, Congressional Research Service, American Law Division. Washington, D.C., 2003. 3 Our American Government. United States Congress, Congressional House Document. Washington, D.C., 2000. 4 Voting in America: Final Report of the NCSL Elections Reform Task Force. National Conference of State Legislators. 2004. Accessed at http://www.ncsl.org/programs/press/2001/electref0801.htm 5 Ibid. 6 Ibid. 7 Help America Vote Act of 2002 NASS/NCSL Summary. National Conference of State Legislators. 2004. Accessed at http://www.ncsl.org/programs/legman/elect/nass-ncslsummaryw-orecs.htm#csvrl 8 Ibid. 9 Election Reform 2004 Whats Changed, What Hasnt and Why. Electiononline.org, 2004. Accessed at http://electionline.org/site/docs/pdf/2004.Election.Preview.Final.Report.Update1.pdf 10 Information from California Secretary of State, publishing in process. 11 Letter from California Secretary of State to DeForest B. Soares, Jr., Chair, Election Assistance Commission, 10/22/04. 12 National Association of Secretaries of State, accessed on December 6, 2004, at http://www.nass.org/index.html 13 Help America Vote Act of 2002 NASS/NCSL Summary. National Conference of State Legislators. 2004. Accessed at http://www.ncsl.org/programs/legman/elect/nass-ncslsummaryw-orecs.htm#csvrl 14 Letter from California Secretary of State to DeForest B. Soares, Jr., Chair, Election Assistance Commission, 10/22/04. 15 Ibid. 16 Email correspondence from Oregon State Coordinator HAVA Training and Educational Outreach, 11/10/04. 17 Information from California Secretary of State, publishing in process. 18 Office of the Secretary of State: Clear and Appropriate Direction is Lacking in Its Implementation of the Federal Help America Vote Act, California State Auditor, 2004-139, December 2004, p. 36 19 California State Auditor, p. 30-31, 37. 20 California State Auditor, p. 10.