By Daniel P. Tokaji
One of the things that may change with the new Democratic majorities in both houses of Congress is greater attention to the mechanics of elections. In one sense, this is a welcome development. The last of the core provisions of the Help America Vote Act of 2002 (HAVA) were implemented in this year’s election season. It is therefore quite appropriate that this Congress devote attention to studying how well these changes worked and what might be done prospectively to make our election system function better. There is reason to be concerned, however, that this is not what the incoming congressional majority will actually do.
One of the things that may change with the new Democratic majorities in both houses of Congress is greater attention to the mechanics of elections. According to this report in the San Jose Mercury News, Senator Dianne Feinstein plans to focus on electronic voting and other election administration issues, in her new capacity heading the Rules and Administration Committee. In one sense, this is a welcome development. Now is the perfect time for Congress to re-focus on the nuts and bolts of elections. The last of the core provisions of the Help America Vote Act of 2002 (HAVA) were implemented in this year’s election season. Chief among those were the replacement of punch card and lever voting technology, for those states which accepted federal funds, and the implementation of disability accessible voting technology. Also in place this year, at least in most states, were new statewide registration databases mandated by HAVA. It is therefore quite appropriate that this Congress devote attention to studying how well these changes worked and what might be done prospectively to make our election system function better. There is reason to be concerned, however, that this is not what the incoming congressional majority will actually do. In the past few years, the main election reform on which some on the Democratic side have been focused is the so-called “voter verified paper audit trail” (VVPAT). Mandating that electronic machines generate a VVPAT is frequently urged as a remedy for the security and transparency concerns with electronic voting. I’ve explained on many occasions, including here, why I don’t think such legislation is wise. Most recently, some electronic voting critics have seized upon the problems in Sarasota County to argue that a VVPAT should be required — even though it’s not at all clear that a VVPAT would have prevented the problems that emerged there. Relatively little research has been done on the functioning of electronic voting machines with a VVPAT in real elections. The research that does exist raises serious questions about whether mandating a VVPAT is really a workable and effective remedy for the real security issues that exist with electronic voting technology. No one seriously denies that there are risks with electronic voting technology. The danger is mandating a particular solution before understanding the problem completely. As I noted here, it’s pretty clear that something went seriously wrong in Sarasota County, and I’m among those who very much look forward to learning what that something — or some things –were. But it’s reported that Senator Feinstein was planning to roll out VVPAT legislation even before the Sarasota problem. If true, there’s reason to worry that some in Congress aren’t seriously interested in looking carefully into the problems in HAVA implementation, but rather in pushing through a pre-selected solution that may or may not make sense. Congress should take a hard look at what went wrong in Sarasota County. Before moving to mandate the VVPAT or any other particular fix, it should also look carefully at how effectively they’ve functioned in places where they have been implemented, such as Cuyahoga County. Do voters actually check the VVPAT, for example, when it’s provided on electronic voting machines? And is it practicable to hand-recount a sufficient number of paper records to ensure an adequate level of confidence? Congress should also examine the problems that have occurred in the implementation of HAVA throughout the country, including but not limited to those relating to voting technology. Only after engaging in a careful process of diagnosis should Congress move to the task of prescribing remedies. This applies not only to voting technology, but also to voter registration, provisional voting, identification requirements, and all the other aspects of election administration that have undergone change in the last six years. It should also look carefully at the various agencies charged with administering elections, including the Election Assistance Commission (EAC), to determine whether there’s a need for institutional reform. If Congress rushes to judgment on solutions before properly analyzing the problems, it could end up making things worse instead of better.