The Help America Vote Act

1. The Help America Vote Act 10 Years Later Melissa Picciola, Equip for Equality

2. Before HAVA • Voting Rights Act of 1965 (VRA) • “Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice” except person’s employer or union representative • Voting Accessibility for the Elderly and Handicapped Act of 1984 • Within each state, each election authority shall assure that all polling places for Federal elections are accessible • Limited to physical disabilities • Onus was on state’s highest ranking election officer

3. What about the ADA? • No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity. • Where are the shortcomings? • Undue financial and administrative burden • No minimum federal standards with regard to voting/accessibility • Title II Program Access does not lead to universal access at all polling places

4. Voting Accessibility before HAVA • 84% of polling places had some barrier • Only 16% of polling places have no obstacles “from the parking area to the voting room” • 18 states lacked statutes or regulations requiring or suggesting that voting booths and equipment should accommodate wheelchairs • 28 states had general provisions only • 29 states did not require magnifying instruments; 47 did not require large print ballots; 45 did not require Braille ballots • 27% of counties failed to include accessibility among the criteria used in making polling place selections

5. Election 2000 and HAVA • HAVA (42 U.S.C. §§15301-15545) is most important direct federal response to the 2000 election fiasco in Florida • Many provisions of HAVA were directly inspired by the controversy; many came along for the ride • Two main purposes: Funding and Regulatory • Disability community seizes opportunity to reform elections and seek to increase access to polls, including ability to cast votes independently and privately

6. HAVA: Voting equipment • Main thrust of HAVA was to encourage states and localities to change their voting equipment in order to promote greater accuracy in casting and counting of votes. • Large majority of federal funding to states (close to $3 billion) authorized by HAVA was intended to purchase new voting equipment. • HAVA did not require certain type of voting machine, but did mandate that states replace lever voting machines with electronic voting machines compliant with minimum requirements • Permit voters to verify votes in “private and independent manner” • Notify of errors in votes, including undervoting

7. HAVA: Access for People with Disabilities • Intended to make the voting process the same for individuals with disabilities and those without, including privacy and independence • Mandates that every state implement an electronic style of voting machine system that will allow a voter with any type of disability to vote on the same machine as a voter without a disability

8. HAVA: Additional Provisions • Create centralized databases of registered voters in each state • Single, uniform database at state level • Improve administration of elections • Voter education • Establishes Federal Election Assistance Commission • Issue guidelines on implementation and compliance with HAVA as well as guidelines for voting systems

9. HAVA: Additional Provisions • Provisional Ballots • Allow individuals whose voting registration status is in question to preliminarily cast their votes on ballots that will then be counted once voter’s registration status is verified • DOJ Enforcement • U.S. DOJ may seek declaratory and injunctive relief for violations of HAVA

10. Missing HAVA Provisions • Ballot Design • EAC issued voluntary guidelines in 2007, but preliminary indications are that election authorities are not widely following them • More concrete reactions to Florida in 2000 • Nothing regarding recounts, other disputes • Private right of action to litigate under HAVA and get money damages for violations • Did contain provisions for HAVA administrative complaint process

11. Evaluating HAVA’s success • Overall, HAVA was full of centrist recommendations that focused on the problems that had been highlighted in the recount controversy • The provisions of HAVA that have ultimately caused the most controversy were prompted by issues that did not arise at all in Florida, and only were introduced in the congressional process through the side door • Accessibility mandate • Identification requirements for first-time voters who registered by mail

12. Evaluating HAVA’s success • In 2008, polling places with no barriers increased from 16% to 27% • Data to show how accessible voting was before and after 2000, from the perspective of the voter, is virtually non-existent • No studies that allow assessment directly of how access to voting to the disabled changed after HAVA, particularly as it relates to the use of voting machines

13. Compliance with HAVA • Most states complied with requirements for voting systems by 2004 deadline, and all but New York complied by 2006 • Election Assistance Commission tested and certified different kinds of voting machines made by different voting machine manufacturers • States also had to submit a comprehensive “State Plan” detailing how federal funding will be used and how state will distribute funds to others

14. Compliance with HAVA • States have complied with the requirement to implement provisional ballots • Most states moving toward full compliance with centralized voter registry equipment • Registration problems appeared to have declined since 2000, but it is impossible to peg this improvement on HAVA

15. Effect: Voting Machines • Rather than transform and unite all voting systems, election authorities have one electronic voting machine, for use only for people with disabilities • Almost everyone is using optical scan paper ballot, not touch-screen machine • “Voter Verified Paper Trail” is an issue • Accessible machines are not being used extensively • In rush to purchase machines, jurisdictions may have machines they don’t fully understand • Outsourcing of support • Inadequate training of election judges, especially in smaller jurisdictions

16. Effect: No further reform • Despite some improvements, HAVA has likely hardened opposition to further election reforms among officials in small and medium-sized local jurisdictions • Increased cost and complexity of election administration • Must comply with state and federal mandates for situations that occur relatively infrequently • E.g., provisional voting

17. Effects of HAVA • HAVA-mandated abandonment of punch cards clearly improved the accuracy of voting machines that were used throughout the United States • Findings concerning the mandated abandonment of mechanical lever machines are less consistent • Increased use of technology also prompts security concerns • i.e. concerns about electronic machine being “hacked”

18. Effect: Evaluating Accessibility • People with disabilities emphasize getting to the polls or navigating the voting system once at the polling place when asked about why they fail to vote • HAVA does not address these issues • Difficult to know how the machine accessibility mandate should be compared to other problems facing voters with disabilities

19. Effect: Problems Remain • People with disabilities still have problems voting • Those problems have not changed much since 2000 • HAVA has not been an especially effective vehicle for granting people with disabilities richer access to voting • HAVA was successful as a funding mechanism; it was less successful as a regulatory mechanism

20. Unintended Consequences • Controversies over Electronic Voting • Concern about use of computers in casting and counting ballots • Increased attention on proper identity of voter • Current attention to voter fraud and voter ID laws can be connected to HAVA’s voter registration list requirements, though HAVA is certainly not the cause for these movements