States scramble to implement voting standards

Full text of Help America Vote Act of 2002

Most states did not meet a Jan. 1 deadline to comply with standards mandated in the Help America Vote Act (HAVA) of 2002, but all noncompliant states say they will be ready for the November 2006 federal elections.

Forty-three states missed the mark, according to a recent survey by the National Association of Secretaries of State. The main cause of their failure was the delay in creating the Election Assistance Commission (EAC), said Sam Reed, NASS president and secretary of state for Washington. His state was among those that missed the deadline.

The commission is supposed to implement HAVA’s requirements, but it was not created until December 2003. EAC replaces the Federal Election Commission, administers HAVA, establishes voluntary standards and disburses federal funds to the states.

“Standards have also been late in coming in,” Reed said.

HAVA requires that at least one voting machine be accessible to voters with disabilities at each polling place and that states establish voter registration lists to guard against fraud. However, the Bush administration’s delay in creating EAC — HAVA called for its establishment by February 2003 — slowed progress. “EAC was not up and running until 2004,” said EAC Chairman Paul DeGregorio.

In addition, HAVA was supposed to provide $3.8 billion to the states by December 2002, but the funding was not available until April 2003.

Meanwhile, growing concerns about the lack of security, transparency and paper audit trails in existing electronic voting systems illuminated the bare-bones requirements of the 2002 HAVA standards. Those standards do not require as much security or transparency as many e-voting skeptics would like and only mandate a paper recount record, not a paper audit trail.

By comparison, the 2005 EAC standards, which are voluntary, recommend security measures and a voter-verified paper audit trail. EAC created the standards to account for technology advances and changes to some state laws after HAVA was passed in 2002.

HAVA charges EAC to work with the National Institute of Standards and Technology to provide testing, certification and decertification of voting systems through accredited laboratories. But those labs are only testing the 2002 HAVA requirements and not the 2005 voluntary standards, which will go into effect in 2007. EAC hopes to begin testing for the 2005 standards before 2007.

Nevertheless, 25 states have passed legislation that mandate compliance with EAC’s 2005 Voluntary Voting System Guidelines, beyond the minimal HAVA requirements. Although the additional measures provide more auditable, secure voting systems, they have also contributed to delays. States with laws requiring compliance with 2005 standards did not want to invest in voting systems before new guidelines were completed in December 2005.

When New York missed the Jan. 1 deadline, the Justice Department threatened to sue the state. But it had taken 18 months for New York to pass legislation to bolster the federal HAVA laws.

One of HAVA’s primary concerns is ensuring that voting machines are accessible to voters with disabilities, said Lee Daglian, director of public information at the New York Board of Elections. But the law does not specify the conditions of compliance.

“All the federal law says is that you have to make at least one machine accessible in each polling place to disabled voters, but they don’t say how,” he said. “It’s up to the states to figure out how, and then the e-voting companies must manufacture them.”

In New York, accessible voting machines have a breath-controlled “sip and puff” device for paraplegics. They also have voice technology for visually impaired voters, with headphones to protect the secrecy of their votes, he said.

Adding to delays, voting systems that meet federal and various state requirements for certification are not yet ready.

“We have to buy equipment that meets federal HAVA and also state standards for a [paper trail], but there are no companies that produce that yet,” Reed said.

Vermont met the Jan. 1 deadline by using a vote-by-phone system. “We’re a small state, but our big challenge is that we are a paper ballot state,” said Deborah Markowitz, Vermont’s secretary of state.

To ease the pressure on states and counties, Rep. Michael Fitzpatrick (R-Pa.) announced in January that he intends to introduce legislation to extend the deadline to November 2006 so states will not be rushed to adopt untested equipment.

Meanwhile, New York and other state officials are wondering what action Justice will take against them for missing the deadline.

“One thing they might do is ask us to return our HAVA money,” Daglian said.

Gerber is a freelance writer based in Kingston, N.Y.