Originally Published: 4/25/2007
HELP AMERICA VOTE ACT OF 2002
By The Issue Wonk
The Help America Vote Act (HAVA) of 2002 (Public Law 107-252) (see 42 USC 15301-15545) was signed into law by President George W. Bush on October 29, 2002. HAVA was spurred, at least in part, by reaction to the debacle of the 2000 presidential election where millions of ballots were disqualified because they registered multiple votes, or none, when run through vote counting machines. HAVA replaced punch card voting systems, created the Election Assistance Commission (EAC), and established minimum election administration standards. It also mandated that all states and localities up-grade their election procedures, including their voting machines, registration processes, and poll worker training. Specifics of implementation were left up to the individual states.
HAVA created the Election Assistance Commission (EAC), an independent agency of the U.S. government. It’s responsible for holding hearings, administering election information, creating a testing and certification program for voting systems, providing guidance to states, and administering the grant programs. It has no rulemaking authority other than those permitted by the National Voters Registration Act of 1993 (NVRA). Any action taken is required to be approved by at least 3 of its 4 commissioners. Commissioners are appointed by the president and they are supposed to be 2 Republicans and 2 Democrats. It is responsible for making grants to entities for research and development to improve the quality, reliability, accuracy, accessibility, and security of voting equipment, election systems, and voting technology. HAVA requires that the National Institute of Standards and Technology, a Division of the U.S. Department of Commerce, annually recommend areas for research.
HAVA’s provisions include the following:
State Plans. To be eligible for federal funding, each state must submit to the EAC a plan which describes how the money will be used, what it is doing for voter education and poll worker training, how it will adopt the voter guidelines, and what performance measures it will use to determine success, a complaint procedure, and the committee who developed the plan. Annually thereafter each state is required to submit a report listing its expenditures and an analysis of the activities funded.
Voting Machines. HAVA requires the states to replace punch card and/or lever voting systems with new systems in accordance with its voting standards, which state the voting machines must:
- permit voters to verify the votes selected before the ballot is cast and counted
- provide the voter with the opportunity to change the ballot or correct any error before the ballot is cast and counted
- notify the voter of errors such as under-votes and over-votes and provide the voter a chance to correct the errors
States that do not use electronic equipment must establish a voter education program specific to the equipment that they use and provide voters with instructions on how to correct a ballot before it is cast.
Accessibility. All voting areas must be accessible to individuals with disabilities, including the blind and visually impaired, in a manner that provides the same opportunity for access and participation, including privacy and independence, as for other voters. This includes outreach programs and training.
Computerized Statewide Voter Registration. HAVA requires that states develop a single, uniform, computerized statewide voter registration list defined, maintained, and administered by the states, rather than local officials. Statewide lists must be coordinated with other agency databases within the state and HAVA requires regular maintenance of the lists, including removing ineligible voters and duplicate names.
Voter Identification. Any voter who registers by mail or has not previously voted in a federal election must show current and valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter.
Provisional Voting. Voters who are identified as ineligible to vote, but who believe themselves to be eligible, will be able to cast a provisional ballot. After the election the appropriate authority will determine if the voter was eligible and, if so, the vote will be counted. If polling hours are extended, voters will be required to vote using provisional ballots. Voters who do not comply with HAVA’s identification requirements (see above) will be able to cast a provisional ballot.
Critics of HAVA argue that it attempts to solve the problem of punch-card voting machine errors seen in the 2000 Florida election with expensive electronic machines, which many say are even less reliable, especially Direct Record Electronic (DRE), or “touch screen” machines. Vendors such as Diebold Election Systems, Election Systems & Software (ESS), and Sequoia Voting Systems made millions of dollars throughout the country in selling their electronic voting devices. A Pennsylvania court ruled in April 2007 that voting machine certification was the result of what Judge Rochelle Friedman called “deficient examination criteria” which “do not approximate those that are customary in the information technology industry for systems that require a high level of security.” The court ruled that voters have a right under Pennsylvania’s constitution to reliable and secure voting systems and can challenge the use of electronic voting machines “that provide no way for Electors to know whether their votes will be recognized” through voter verification or independent audit.1
Republicans insisted upon stricter identification requirements before passing HAVA.2 Republicans have consistently asserted frequent voter fraud by Democrats. Democrats contend that the problem is greatly exaggerated in order to promote voter ID laws intended to inhibit turnout by poorer, typically Democratic voters. The Bush administration began a crackdown on voter fraud in 2002, but the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections. "If they found a single case of a conspiracy to affect the outcome of a Congressional election or a statewide election, that would be significant,” said Richard L. Hasen, an expert in election law at the Loyola Law School. “But what we see is isolated, small-scale activities that often have not shown any kind of criminal intent.”3
1 PRNewswire. Court Recognizes Pennsylvania Voters’ Right to Reliable, Secure Voting Machines, April 13, 2007.
2 Rapoport, Miles. Beyond Voting Machines: HAVA and Real Election Reform. AlterNet, July 30, 2003.
3 Lipton, Eric & Urbina, Ian. In 5-Year Effort, Scant Evidence of Voter Fraud. The New York Times, April 12, 2007.
© The Issue Wonk, 2007