By Terri L. Enns

As in numerous other states, this year’s primary election in Ohio, which will occur next week, will be a test of several changes in elections procedures mandated at the federal and state level. Of particular concern are the changes that could affect the interactions between the voter and the poll worker and the voter and voting technology. Extensions permitted under the federal Help America Vote Act (HAVA) through January 1, 2006, have now expired, bringing some new federal overlays to voting procedures in Ohio and elsewhere. In addition, the Ohio General Assembly has recently passed two bills implicating election law: HB 3, which makes significant changes to numerous aspects of state election law, and HB 234, which permits any eligible voter to vote by absentee ballot. All of these changes present the possibility of confusion at the polling place on May 2.

One of HB 3’s most controversial changes will require all voters to present ID at the polling place, although for most voters this requirement will not be in effect until after the May primary. Rather, beginning on June 1, Ohio will require ID similar to that which HAVA permits for voters who register by mail (in contrast to new mandates in Georgia and Indiana that limit acceptable ID to photo ID). Thus, in addition to a copy of current and valid photo ID, an Ohio voter may establish her identity by providing a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the elector’s name and address.

While this ID requirement does not apply to most voters appearing at the polling place on May 2, a select few voters will be required to present ID at the primary election, and poll workers must be trained with exacting detail to be neither under- nor over-inclusive when demanding ID from voters.

In Ohio, only those persons who registered to vote by mail and did not provide either a driver’s license number or the last for digits of the voter’s Social Security number are required to provide identification at the polls for the May primary. This requirement is the same as HAVA’s requirement for federal elections, and was in place for all voters voting for federal office in 2004, but is now being applied to voters voting for state offices and issues.

The change in Ohio’s absentee voting law adopted in HB 234 could also implicate the interface between poll workers and voters. Persons who request an absentee ballot for the May 2 primary must provide with their applications and with the returned ballot one of the kinds of ID that will be required from all voters beginning on June 1. A person who requested an absentee ballot may, however, come to the polling place on Election Day and vote, whether or not the voter has mailed the absentee ballot back to the Board of Elections. The poll book should indicate that the person has requested an absentee ballot, but such persons will be permitted to vote a provisional ballot. The provisional ballot ID requirements in effect for the primary will not require that person to provide ID (unless the person registered by mail without providing the necessary ID). Interestingly, in most cases the absentee ballot is the ballot that would be counted, not the provisional ballot cast on the day of the election. This disparity between being required to provide ID for casting an absentee ballot and yet not being required to provide ID when voting a provisional ballot after casting an absentee ballot leaves ample room for confusion among poll workers and voters.

Throughout the country, changes in voting technology required by HAVA will take full effect for numerous primaries, and provide additional potential for difficulties. In Ohio, about half of the eighty-eight counties will be using new voting technology for the first time, and it is imperative that both poll workers and voters familiarize themselves with how to use the machines to vote. Voters need to take responsibility to learn which of the various types of machines will be used in their polling place and how to use them. Poll workers will need to be familiar enough with the machinery to be able to answer questions about their operation and to solve any technical problems arising on Election Day without compromising the secrecy of the ballot.

An additional change facing voters across the United States is the use of statewide registration lists mandated by HAVA. Once again, the proper training of poll workers is critical to avoid disenfranchising voters who are eligible to vote and appear at the polling place on Election Day.

Provisional ballots are the intended back-up for all disputes arising from ID requirements, registration list discrepancies, and other controversies, and poll workers must be familiar with how to use them. Fourteen different situations will result in use of provisional ballots in Ohio beginning on June 1, and the May primary presents an opportunity to test election officials’ readiness to deal with provisional ballots before all of those new uses are in place. Of highest importance is how those provisional ballots are assessed after they are cast, and the intersection between new registration data bases, ID requirements, and the ability of election administrators to properly evaluate the validity of ballots cast provisionally will make the difference between which votes get counted and which don’t.

The critical task is for all eligible voters to be able to cast their votes and have those votes be accurately counted. Ohio used over 49,000 poll workers in over 11,000 precincts during the presidential election in 2004. While the May 2006 primary will not require as many people to operate, it remains true that a large number of people will be working the polls on Election Day, and each of them must be able to apply the law accurately. Additionally, a sufficient number of people at each polling place must be able to properly handle whatever voting equipment is being used, and must understand how the statewide voter data base functions.

The upcoming primary only involves a small number of the changes required by HAVA, HB 3, and HB 234, but these changes affect what happens to votes on Election Day. Of highest concern should be that those eligible voters who appear at the polling place should be able to cast their votes and have them counted. New laws and technology should all function in the service of this goal, and both voters and poll workers should take responsibility to be prepared for the changes they will encounter on Election Day.

By Ruth Colker

The disability rights community and the voting rights community have been moving in somewhat different directions with respect to suggesting that voting practices be modified. The disability rights community has lobbied Congress to improve the ability of voters to vote independently and privately at regular polling stations while some members of the voting rights community have lobbied state legislatures to make it easier to vote by not going to the polls.

Both communities (and these communities obviously overlap) value high voter participation. But the disability rights community also values something that others take for granted – the ability to vote privately and independently at polling places. This second value has two subcomponents which are commonly linked in discussions of voting for individuals with disabilities: the ability to vote privately and the ability to participate in the community of voters at polling places. But these two subcomponents need not be linked. As voting continues to migrate away from polling places, it may better enhance voter participation not to assume that private and independent voting takes place at traditional, community-based polling places.

Over the last twenty years, the disability rights community has been active in improving accessibility to voting. In 1984, Congress enacted the Voting Accessibility for the Elderly and Handicapped Act. This statute requires that “each political subdivision responsible for conducting elections shall assure that all polling places for Federal elections are accessible to handicapped and elderly voters.” If individuals with disabilities are assigned to an inaccessible voting place, they can be assigned to a different polling place that is accessible or be provided with an alternative means for casting a ballot on the day of the election. “Curb site” voting where voting equipment is brought to the person’s automobile is one means of meeting that requirement. Curb site voting was considered superior to absentee voting because it allowed voters with disabilities to enjoy some of the community aspects of voting and make their final decision on Election Day.

The Help America Vote Act strengthened these requirements by requiring that states have at least one accessible machine in each polling place by 2006. It also allocated $100 million for making polling places more accessible. Finally, Congress conditioned the acceptance of federal funds on states adopting federal accessibility standards for polling places. The purpose behind the emphasis on accessible voting machines was to assist visually impaired voters who previously could not vote independently and privately, as well as voters with various manual impairments that could not use traditional voting equipment.

The combination of the 1984 Voting Act and HAVA should greatly increase the likelihood that a voter can enter a polling place and vote with an accessible piece of equipment, and vote both privately and independently. Visually impaired voters can use an electronic voting machine with audio output. There are also electronic voting machines that allow voters with manual dexterity impairments to blow on a tube to record their votes without assistance, although it is unclear how many places are actually purchasing that equipment.

Meanwhile, states have been moving towards less reliance on polling places for voting. As reported by Electionline.org, fifteen states (including Ohio) allow no-excuse early voting and 16 states allow no-excuse in-person absentee voting. Oregon has been the leader in this movement by having all voters vote by mail but early voting was popular in Florida’s last presidential election with approximately 25% of its voters voting in advance of the Presidential election. The movement towards early voting from home or at centralized polling places is beginning to change the community character of voting although some people have noted the security concerns associated with absentee voting.

HAVA tries to protect the right of individuals with disabilities to experience the community aspect of voting, as well as to remove some of the procedural and physical barriers to voting. Before the adoption of HAVA, states often encouraged voters with disabilities to vote by absentee ballot which deprived them of many of the community aspects of voting and dampened participation rates by requiring voters with disabilities to undergo an extra step in order to vote.

Today, states are required by HAVA to obtain at least one accessible machine per polling place. Some states are complaining that this machine may be quite expensive, especially in states with paper trail requirements. They are looking for ways to meet their HAVA requirements without purchasing machines that might not be used by anyone at small polling places. Vermont is currently facing that dilemma. Vermont continues to rely primarily on hand-counted ballots with only nine localities moving towards optical scan machines. Vermont does not use any electronic voting which makes it difficult for the state to comply with HAVA’s accessibility requirements. The state has proposed a unique vote-by-phone system that election officials assert will meet the needs of voters with disabilities at low cost. The system allows voters to cast votes on designated telephones at polling stations; it produces a paper ballot from every vote cast and can be monitored.

Vermont is planning to place these phones in polling places to comply with HAVA’s polling place accessibility rules. But what if a state made that technology available from home on Election Day? Voting from home on Election Day might appeal to many voters with disabilities but it would deprive them of the community aspect of voting. But is it problematic for voters with disabilities to be encouraged to use that kind of technology from home on Election Day if most voters begin to vote from home on Election Day? Unlike the old days of encouraging only voters with disabilities to follow cumbersome rules for absentee voting, voting from home may soon become the preferred method of voting for all voters, depending on the outcome of the debate about security concerns.

At present, most of us still go to the polls to vote on Election Day. And voters with disabilities should be equally able to suffer the inconvenience of voting on Election Day as well as the exhilaration of watching our democracy work. But as states increasingly move towards encouraging some form of voting away from polling places, we might want to re-write HAVA’s requirement of one accessible voting machine per polling place to entail more flexibility.

Ironically, we might get to the point where it is primarily voters with disabilities who go to polling places to vote on Election Day because the other mechanisms that states provide for voting are not sufficiently accessible to individuals with disabilities. Would a vote by phone system be accessible to individuals with hearing impairments? Would an online system of voting be accessible to voters with visual impairments, manual impairments, or various learning disabilities? Is a mail-in system sufficiently accessible to individuals with various kinds of visual and manual impairments? As these alternatives become more popular, we should make sure that they offer accessibility to individuals with disabilities because those alternative forms may soon become the regular method of voting. The Americans with Disabilities Act arguably requires states to make each of those alternatives accessible to individuals with disabilities but HAVA only emphasizes the accessibility of polling places. We wouldn’t want voters with disabilities to have to endure the inconveniences of Election Day voting if that method becomes unpopular for most voters. Hence, I suggest that the disability rights community be sure to “keep up” with what it means to enjoy the right to vote in our society. We should not necessarily assume that will mean visiting polling places on Election Day for the next generation.

[unsigned comment]

Yesterday, Commissioner Ray Martinez III of the Election Assistance Commission (“EAC”) announced his resignation, effective June 30, 2006. Commissioner Martinez’s resignation letter to President Bush provides personal reasons for his decision, specifically a desire to be closer to his family in Texas. Although he will be greatly missed, the work he has done during his tenure on the commission provides a worthy example, not only for the EAC but also for anyone with an interest in election reform.

Commissioner Martinez has been critical in establishing the EAC’s indispensable role in the American election system. Particularly valuable have been his steadfast efforts to ensure that the EAC stays above the political fray, and discharges its responsibilities in a manner that will improve the administration of elections for all voters. In order to appreciate the contributions that Commissioner Martinez has made to the objective of better election administration, it is helpful to understand the significant challenges that the EAC has faced in the first few years of its existence.

In the wake of the 2000 election, it quickly became apparent that the United States had for far too long neglected its election system. Responsibility for the conduct of elections was left almost entirely to state and local officials, with little guidance – and practically no financial assistance – coming from the federal government. While Florida’s notorious punch-card ballots attracted the bulk of attention at the time of the 2000 election, post-election research showed that voting equipment was only the tip of the proverbial iceberg. As study after study revealed, there was also a serious need for election reforms in such areas as registration, election-day procedures, pollworker recruitment and training, voter education, access for people with disabilities, and ballot security.

Although the need for reform was clear, it took considerable time for Congress to agree on federal legislation that would satisfy those of both parties. Finally, on October 29, 2002 – almost two years after the 2000 election – the Help America Vote Act (“HAVA”) was signed into law. This law imposed new requirements in the areas of voting equipment, registration lists, voter identification, and provisional voting. Perhaps most important of all, HAVA created the bipartisan EAC, consisting of two members of each major party, and conferred on this new federal agency significant responsibilities with respect to the administration of elections. Among the EAC’s duties are to provide guidance in such areas as provisional voting and voting equipment, and to commission research on how the administration of elections can further be improved. The EAC is also charged with the responsibility of distributing federal funds authorized by HAVA for election improvements.

From the moment of its creation, the EAC has faced enormous obstacles in fulfilling its responsibilities, and Commissioner Martinez has been instrumental in surmounting those obstacles. Although HAVA required that EAC commissioners be appointed by February 2003, Commissioner Martinez and his three original co-commissioners were not confirmed until December 2003 – less than one year before the 2004 presidential election. Compounding the difficulties arising from the EAC’s late establishment was a shortfall in funding during the EAC’s early existence. Congress appropriated only $833 million of the authorized $1.4 billion in funding for meeting the requirements of HAVA in fiscal year 2003. In the next fiscal year, Congress appropriated only $1.8 million for the EAC’s operations, even though HAVA had authorized $10 million.

Despite these handicaps, the EAC has done an admirable job of fulfilling its responsibilities during its first two-plus years, and Commissioner Martinez’s work has been an important reason for its successes. Prior to the 2004 election, the EAC released a “Best Practices Tool Kit” for state and local election officials, which included recommendations on such topics as provisional voting, voter outreach, disability access, accommodating non-English proficient voters, and the transition to new voting technology. It also released guidelines on electronic voting security, as well as a report on best practices for military and overseas voting.

In the end, approximately one million votes were saved in 2004 as the result of improvements in voting technology and polling place procedures. It would be misleading to credit the EAC with full responsibility for these improvements. Still, the work that the EAC did in a very short period of time – accomplished with limited funds – is a tribute to Commissioner Martinez and his colleagues. Their diligent efforts undoubtedly contributed to the improvements that took place in 2004.

Since the 2004 election the EAC has continued to perform an essential function in providing guidance, distributing funds, and commissioning research to improve American elections. Through fiscal year 2005, the EAC distributed over $2.2 billion to the states, in order to satisfy HAVA’s requirements. This has demanded careful review and analysis of the plans of all 50 states and U.S. territories, to ensure that federal funds are properly spent.

Another critical initiative of the EAC was a survey of state election officials following the 2004 election. This is the largest and most comprehensive survey ever conducted on the United States’ election system. The survey has already been instrumental in illuminating the serious problems that remain. It will undoubtedly prove indispensable to researchers and policymakers for years to come.

The EAC has also devoted considerable effort to developing Voluntary Voting System Guidelines, designed to improve the security, transparency, and accessibility of American elections. Equally critical has been the development of a new federal process for the certification and decertification of voting systems. Time will tell how successful these efforts at improving voting technology will be, but Commissioner Martinez and his colleagues deserve enormous credit for negotiating the multiple competing – and sometimes quite hostile – interests that have dominated the debate over voting technology.

In each of these areas, Commissioner Martinez has performed a critical role in working with his fellow commissioners to get things done. One of the most remarkable aspects of the bipartisan EAC during the early years of its existence is its ability to achieve consensus. The two Republican and two Democratic commissioners have done an admirable job of working together, making all their decisions by unanimous vote in 2005. While we do not know what has gone on behind closed doors at the EAC, there can be little doubt that Commissioner Martinez has played a vital role in allowing the EAC to reach consensus.

It is therefore quite correct to characterize the EAC as a “success story,” as Commissioner Martinez did in his letter of resignation. That is not to deny that there were serious problems in the 2004 election, or that our election system today is still in great need of further improvement. Nor can it be disputed that the EAC has had some difficulties in the early years of its developments. It would have been helpful, for example, if the Voluntary Voting System Guidelines, which the EAC unanimously approved on December 13, 2005, had been adopted sooner. Given that key HAVA deadlines in the area of voting equipment take effect in 2006, the late adoption of these guidelines put state and local election officials in a difficult position. On the other hand, it is likely that the EAC’s failure to act promptly on some issues is a necessary price for the consensus that has been so essential to its early development.

All those who care about election reform will miss the intelligence, initiative, energy, warmth, and diligence that Commissioner Martinez has brought to his job. In the interests of disclosure, we at Moritz should note our work with the Eagleton Institute at Rutgers, under contract with the EAC, researching provisional voting and voter identification issues. Throughout this work, we have consistently been impressed with Commissioner Martinez’s knowledge and insight, as well as his dedication to making elections function better for all voters.

There can be no doubt that a strong EAC will be essential in months and years to come. Foremost among the challenges it will confront are implementation of HAVA’s statewide registration list requirement, enforcement of HAVA with respect to those states that are not yet compliant, and Hurricane Katrina’s fallout on elections. The EAC will also have to deal with such hot-button issues as voter identification and the security of electronic voting, on which there is a substantial partisan divide. To be sure, state and local government will continue to exercise primary responsibility for the day-to-day conduct of elections. It would be a major mistake, however, to leave election administration entirely to state and local officials, without assistance or guidance from the federal government. A strong and adequately funded EAC will be essential to fulfill the promise of election reform.

As we thank Commissioner Martinez for his leadership, we must also recognize the unresolved issues that remain. And as we confront these issues, we would do well to keep in mind Commissioner Martinez’s observation in his resignation letter that the goals of access and integrity should not be viewed as “mutually exclusive.” They are instead complementary. Determining how these goals can both be served is among the most formidable challenges that the American election system faces.

We hope that Congress will recognize the vital role of EAC, by providing it with the resources needed to do its work. And we hope that future commissioners follow the example that Commissioner Martinez and his colleagues have set, of working to achieve consensus and to promote access and integrity in American elections, without regard to partisan consequences.

Unsigned comments represent the consensus opinion of the director, associate director, and three senior fellows of Election Law @ Moritz.

By Daniel P. Tokaji

Effective January 1, 2006, every state in the country was required to have in place computerized statewide voter registration list, commonly known as a “statewide registration database.” Although this requirement has received less public attention than those in the area of voting technology, statewide registration databases may well be the most significant change in federal law contained in the Help America Vote Act of 2002 (“HAVA”). Many states are not in compliance with this requirement. Worse still, the available evidence suggests that some states that are in compliance have some serious problems with their database standards, that may result in eligible voters wrongly being stricken from the rolls. This could mean that voters will show up at their polling place on election day in 2006, only to find that their names aren’t on the list.

This comment summarizes HAVA’s requirements with respect to statewide registration databases, as well as the progress of states in meeting this requirement. It also discusses some difficulties that may arise in the implementation of this requirement, and considers next steps that might be taken toward the improvement of statewide registration databases.

HAVA’s Database Requirements

When Congress enacted HAVA in 2002, it recognized that the antiquated machines that used to cast votes were only one of the problems afflicting our system of election administration. Numerous studies conducted after the 2000 presidential election showed that the problems with the country’s registration lists were at least as serious. For example, the influential report of the Caltech/MIT Voting Technology Project, Voting: What Is, What Could Be, estimated that of the 4 to 6 million lost votes in the 2000 presidential election, between 1.5 and 3 million were due to registration mix-ups. Florida was among the states that experienced serious registration problems in the 2000 presidential election, reportedly resulting in many eligible voters being turned away from the polls on the ground that their names did not appear on registration lists.

There are several provisions of HAVA that are designed to deal with the issue of voters being denied access due to registration errors, but the most pertinent are the ones contained in section 303(a), 42 U.S.C. § 15483(a), entitled “Computerized statewide voter registration list requirements.” Prior to HAVA, voting lists were maintained at the local level in most states, usually by county registrars or boards of election. Under HAVA, each state’s chief election official must implement “a single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the State level.” This database must contain the name and registration information of every registered voter in the state.

The database must allow “immediate electronic access” to all election officials within the state, including local election officials. Any information that local officials obtained shall be entered “on an expedited basis at the time the information is provided to the local official” (emphasis added). The idea here is that it is essential for the state registration database to reflect current information, including any changes that voters provide to local election officials. State chief election officials must provide “such support as may be required so that local election officials are able to enter information.” The implication is that the data entry will actually be done by local election officials, although HAVA does not exclude state-level officials from entering changes or additions into the database.

HAVA also contains requirements as to the maintenance of statewide registration databases. Foremost among those is that states must still adhere to the requirements of the National Voter Registration Act of 1993 (“NVRA” or “Motor-Voter”), in removing voters from the database. Specifically mentioned is Section 8 of the NVRA, which provides that states shall not engage in programs to systemically remove, or “purge,” voters from the rolls within 90 days of a federal election. This section also provides that voters’ names are not to be removed from the rolls due to a change of residence, unless they either (a) confirm in writing that they have moved, or (b) do not respond to an address-confirmation notice sent by forwardable mail and do not appear to vote in at least two federal general elections after that notice is sent. To illustrate the latter requirement, this means that if a notice is sent in March 2006 and not returned, a voter could not be removed from the rolls, unless and until she does not appear to vote in both the November 2006 and November 2008 general elections.

HAVA requires that list maintenance be performed which ensures that “duplicate names are eliminated.” On the other hand, HAVA also requires that there be “[s]afeguards to ensure that eligible voters are not removed in error from the official list of eligible voters.” Reconciling these two imperatives – eliminating ineligible voters and duplicate records, without erroneously deleting eligible voters – is sure to be a formidable challenge in implementing HAVA’s statewide registration database requirement.

Among the most significant, if somewhat confusing, requirements has to do with the coordination of information on the statewide registration database with other sources. HAVA requires that information be shared between a state’s chief election official and its motor vehicle authority – more specifically, they are required to enter an agreement to “match information” from the state registration database with that in the state motor vehicle database, in order to “verify the accuracy” of information provided by the voter. To facilitate such matching, voters who have a state driver’s license are now required to provide that number. Those who lack a driver’s license must provide the last four digits of their social security number, and those who have neither are to be assigned an identifying number.

State motor vehicle authorities are in turn required to enter into agreements with the Commissioner of Social Security, to facilitate the sharing of information. Congress directed the Commissioner to enter into agreements with states that will allow the verification of specified information, specifically voters’ names, dates of birth, social security numbers, and whether they are deceased. This information is supposed to be kept “strictly confidential,” and not to be used for purposes other than the matching and verification required by HAVA. Left ambiguous by HAVA is what should happen if the registration information provided by the voter cannot successfully be “matched” with motor vehicle or social security records – a subject I return to below.

States must also coordinate their registration database with other officials records. Specifically, HAVA requires states to coordinate the statewide registration database with other state records, to ensure that ineligible felons and deceased voters are removed.

The original deadline for compliance with the statewide registration database requirement was January 1, 2004. States were allowed to obtain an extension until January 1, 2006, however, by certifying to the Election Assistance Commission (“EAC”) that they could not meet this deadline for good cause. The vast majority of states obtained this good-cause extension.

Implementation of HAVA’s Requirements

Implementing the statewide registration database requirements has proven to be a challenge for the states. Among the most significant issues that have arisen are: (1) how to allocate responsibilities as between state and local election officials, (2) how to “match” statewide registration database records against other databases, specifically motor vehicle and social security records, and (3) how to remove voters who are truly ineligible, without mistakenly purging eligible voters.

As for the first issue, there have been two contrasting approaches to state-local responsibility that the states have taken in developing their statewide registration databases. A majority of states (38, according to electionline.org) have adopted a “top-down” approach. Under this approach, a unified registration database is maintained by state election officials, with the information needed to update this database provided by local election officials. Seven states, however, opted for a “bottom-up” approach, in which local jurisdictions maintain their own registration lists – as has been the practice in most states before now – with information periodically submitted to the state election authority. In effect, the statewide registration database functions as a compilation of local lists under the “bottom-up” approach. Other states have adopted a hybrid approach that combines elements of both, and one state (North Dakota) is exempt because it does not maintain voter registration lists.

In July 2005, approximately six months before the statewide database requirement took effect, the EAC released its Voluntary Guidance on Implementation of Statewide Voter Registration Lists. The EAC does not have the power to issue binding regulations to implement HAVA’s requirements, which is why this guidance is “voluntary.” Although the EAC’s guidance states that “top-down” databases are “most closely akin” to what HAVA requires, it declined to say that “bottom-up” databases violate HAVA. To the contrary, it concluded that “bottom-up” databases comply with the act “as long as the State database, the data and the data flow are defined, maintained, and administered by the State.” In order to make sure that new information is promptly incorporated into the statewide registration database, the EAC recommended that there be synchronization between the local lists and statewide database at least once every 24 hours.

The second issue, the “matching” of statewide registration databases against other official records, has raised concerns that voters may erroneously be deleted from registration rolls due to data entry or other administrative errors. The Brennan Center for Justice highlights this problem in its recently released report, Making the List: Database Matching and Verification Processes for Voter Registration. Based on a survey of the states, the Brennan Center discovered widely divergent practices among the states in this area. It found particularly troubling the expected practice of some states to reject registration applications, if the information could not precisely be matched with social security or motor vehicle records. While HAVA requires that some matching be done to “verify the accuracy” of information provided on accuracy, it does not say what should happen in the event that there is not a match. Especially worrisome is the prospect that registration applications could be rejected, due to trivial discrepancies.

By way of illustration, the Brennan Center notes that typographic errors in data entry (e.g., entering “Pierce” instead of “Peirce”) and the use of nicknames (e.g., “Sam Peirce” rather than “Samuel Peirce”) could result in the rejection of registration applications. For this reason, the Brennan Center report recommends against requiring an “exact match” to verify registration information, but instead suggests a more flexible “substantial match” standard. Even where a “substantial match” cannot be obtained, it recommends that voters should still be registered. The consequence for voters would be that they would then have to produce some form of documentary identification, if they are among the group of voters to which HAVA’s ID requirement applies (first-time voters who registered by mail).

According to the Brennan Center, 24 states will place voters on the rolls even if a match cannot be obtained, with some of those states requiring them to sign an affidavit or produce ID in order to vote. At the other end of the spectrum, 6 states will refuse to register voters entirely if a match cannot be obtained. This stringent standard will make it very likely that some voters will find their names not on the rolls due to data entry errors.

The EAC’s guidance speaks to this issue, recommending that states “ensure that properly filed registration applications from eligible voters are not rejected due to a database error or inflexible database coordination or matching rules.” It also recommends that states avoid rejecting registration applications as unverifiable until they have “given the individual an opportunity to correct the information at issue and attempted to validate the accuracy of the government information contained in its databases.”

The third issue is how states can successfully clear “deadwood” from the rolls without mistakenly purging eligible voters. In the majority of states that disenfranchise some or all ex-felons, this will require care to ensure that voters are not erroneously deleted because they have the same name as a convicted felon – something that occurred in Florida prior to the 2000 election. The same concern applies to voters who have died. The “unique identifier” to be assigned to each voter is supposed to prevent confusion among voters with the same or similar names, but it remains to be seen whether this will function as an adequate check on erroneous purges of eligible voters. Another concern is whether states will in fact adhere to the NVRA’s requirements, applicable to voters who change residence, as HAVA requires. As noted above, a voter should not be removed due to an address change, unless she confirms that change in writing, or unless she fails to vote in two consecutive federal general elections after a mailed notice is sent.

States have adopted a variety of approaches in constructing their databases. Most states entered into contracts with vendors to create statewide registration lists. Among the companies that have sought states’ business are major voting machine vendors (ES&S, Diebold, and Hart Intercivic) and other companies including IBM, Accenture, and Unisys. In some cases, vendors were unable to produce statewide databases on the timelines required by HAVA.

Among the states that did not comply with the January 1, 2006 deadline for implementation of the statewide registration database was California, which entered into a memorandum of agreement with the U.S. Department of Justice in order to avoid a lawsuit. DOJ subsequently brought this lawsuit against the State of New York, for that state’s failure to comply with HAVA’s database requirements, as well as its voting equipment requirements. Other states that reportedly missed HAVA’s January 1, 2006 database deadline include Colorado, Wyoming and Nevada. Other states, like Indiana, have a registration database in place but have experienced glitches in pre-election testing.

What to Look Out for in 2006

While the missed deadlines are unfortunate, an even more serious problem would be for voters to be mistakenly deleted from registration rolls due to faulty matching or purging practices. Voters in states that have adopted stringent data-matching standards, and have decided not to register voters where a match is not found, are especially at risk.

There are also security and privacy concerns surrounding the implementation of statewide registration databases. That includes not only the people who will have access to the information they contain, but also the ability of malicious insiders to alter registration records. Given the enormous attention that has been given to the security of electronic voting machines, it is somewhat surprising that relatively little attention has been given to the security of voter registration records, where the risks of foul play are at least as serious. For example, an insider with access to state registration records could selectively delete voter records in precincts where voters of one party predominate, thus affecting election results, if proper procedural safeguards are not in place.

Another concern arising from the implementation of statewide registration databases is that it may put additional pressure on provisional ballots, at least in the short term. To the extent that voters are mistakenly deleted or omitted from new voter registration databases, those voters still have the right to cast provisional ballots in federal elections. Whether or not those provisional ballots will actually be counted, however, is another question. That will depend largely on the standards set by the law of that state, and whether or not election officials are able to pinpoint the reason why a voter was not included in the statewide registration database between election day and the deadline for counting provisional ballots. This could obviously be a laborious process but, in close elections, it might spell the difference between victory and defeat.

None of this is to suggest that Congress made a mistake when it decided to require statewide registration databases as a part of HAVA. It is simply too early to make that judgment. So too, it would be a mistake to enact new federal requirements with respect to statewide registration databases, until the results of state’s implementation of HAVA-required databases are known and can be carefully studied. Among the questions that ought to be examined are:

• whether top-down databases function better than bottom-up databases,
• whether stringent matching standards resulted in the erroneous deletion of eligible voters,
• whether the statewide registration databases have succeeded in accurately removing “deadwood” from the voting rolls,
• whether state election officials were successful in coordinating state registration databases with motor vehicle, social security, penal, and death records,
• whether the implementation of the statewide registration databases resulted in more provisional ballots being cast, and
• whether provisional voting served as an effective means by which to count the votes of those who were wrongly purged from the voting rolls.

One of the chief benefits of our federalist system of government is that it allows states to operate, in the words of Justice Brandeis, as “laboratories of reform.” Seen in this light, there is a useful dimension to the diversity of approaches toward statewide registration databases being taken by the various states. To take advantage of this feature of our democracy, however, it is vital that there be systematic research on how well the reforms of various states are actually functioning in real-world elections. The most important thing that we can do in 2006, then, is to study with care the results of the different approaches that states are taking to statewide registration databases, and evaluate how effectively different methods have worked. Until we have answers to these and other questions surrounding the implementation of state registration databases, it is premature to recommend new changes in federal law.

By Daniel P. Tokaji

2006 is turning out to be a big year on the voting technology front. That’s primarily because of some important deadlines in the Help America Vote Act of 2002 (“HAVA”), requiring disability-accessible voting equipment and the replacement of punch-card and lever machines. A number of states failed to prepare adequately for these deadlines, forcing a rush to get new technology in place in time for this year’s elections. In other states, the fierce debate over the security of electronic machines – and, more specifically, the push to require contemporaneous paper records of electronically-cast votes – has impeded conversion to new technology.

The end result is that, contrary to what Congress intended in 2002, the transformation of the United States’ voting equipment is nowhere near complete as of early 2006. The big question is how to move forward, given this messy state of affairs.

How We Got Here

In order to chart a course forward, it is first necessary to review how we got to where we are now. The controversy over voting equipment began in earnest with the November 2000 election, in which most voters in the pivotal state of Florida used unreliable paper-based voting systems – specifically, central-count optical scan and punch card ballots – that do not allow voters to “check their work” before casting their votes. The result was that many voters mistakenly cast “overvotes” (marking more than allowed number of candidates) or “undervotes” (not marking any candidates), which were not counted. It’s possible, and some argue likely, that the equipment used affected the result. Studies since 2000 have shown that punch-card voting equipment has an especially negative impact on certain groups of voters, including people of color.

As a result of the documented problems with certain types of paper-based voting systems, voters in several states – including Florida, Georgia, Illinois, California, and Ohio – brought lawsuits to compel the replacement of this equipment. Most of these lawsuits were settled or otherwise resolved, with states agreeing to obtain better voting systems.

Eventually, Congress took action on election reform by enacting HAVA in 2002. There are two important provisions of HAVA having to do with voting equipment. Title I of the statute provided $325 million in federal funds for the replacement of punch-card and lever voting machines. States accepting this money (30 in all) were originally to have their new technology in place by November 2004, but most states obtained an extension. HAVA allowed such extensions to be granted for “good cause,” but set an outer limit by requiring that the transition to new voting technology be complete in time for the first federal elections in 2006 – in other words, for this year’s primary elections. States that fail to meet this deadline are required to pay back the federal funds they took, in proportion to the number of precincts that have failed to get rid of the old equipment.

The other key provision of HAVA relating to voting equipment is contained in Title III of the Act, which sets requirements applicable to all states. Among those requirements is that each state have in place at least one voting unit that is accessible to people with disabilities, including those with visual impairments. Contemporary touchscreen machines provide this capacity, through an audio component that reads the ballot to voters who are blind or otherwise visually impaired. Some electronic systems also have accessibility features for those with manual dexterity or mobility impairments, allowing them to vote independently. Voting equipment must also have alternative language capacity, something that electronic machines can also do. Finally, HAVA requires that voting machines have a manual audit capacity. That includes a “permanent paper record,” that is supposed to be available for use in the event of a recount. The deadline for compliance with these requirements was January 1, 2006.

Between HAVA’s enactment in and the 2004 election, many but not all states took action to replace unreliable voting equipment. This, in fact, is one aspect of HAVA which yielded positive results. Nationwide, the percentage of voters using punch-card voting equipment declined substantially, going from 31 percent to 13 percent between the 2000 and 2004 presidential elections. This shift was accompanied by a significant decrease in the number of lost votes. Charles Stewart of MIT estimates that there were approximately one million votes saved in 2004, due to new voting equipment and administrative improvements.

Still, the transition to new voting equipment was not complete by the 2004 presidential election. The pivotal state of Ohio was among those that continued to use unreliable punch-card voting equipment in that election. Over 70 percent of the state’s voters used punch cards in 2004 and, had the election been closer, the roughly 50,000 votes lost due to the continuing use of punch cards might well have been determinative – as they probably were in Florida’s 2000 election.

The Present State of Affairs

With HAVA’s deadlines now upon us, many states are behind the eight-ball when it comes to compliance with federal voting system requirements. Although the reasons for states’ noncompliance are complex, concerns over the security of contemporary electronic voting machines are a major factor. Prominent among the concerns has been the possibility that software could be tampered with, resulting in elections being stolen. In fact, some advocates made this very allegation about Ohio’s 2004 election – despite the fact that paper-based punch card voting systems were used by most voters.

The focal point of the debate over electronic voting security has been proposals to require these machines to generate a contemporaneous paper record of the electronic ballot, or “voter-verified paper audit trail” (VVPAT). Although HAVA already requires a permanent paper record, that can be used in the event of a recount, laws passed or proposed in several states go further. They require that the paper record be produced for viewing by the voter, before it is actually cast. The most commonly discussed way of doing this is to print out the voter’s choices on a strip of paper adjacent to the viewing screen of the electronic voting machine. Several Nevada counties experimented with such a system in the 2004 election.

It remains very much uncertain whether VVPAT systems will provide a workable and effective solution to the security concerns surrounding electronic voting. What little evidence is available so far suggests that very few voters actually check all of their choices on the paper printouts. Paper ballots, moreover, have security concerns of their own – like electronic records, paper records can be tampered with if proper procedures are not prescribed and rigorously followed.

In addition, the paper records will only serve as an effective check on cheating, if a sufficient number of paper records are actually recounted by hand. That’s a laborious process, and states have thus far showed little interest in requiring a sufficient percentage of paper ballots to provide an acceptable level of confidence in the accuracy of election results. In Nevada, for example, the Clark County registrar of voters estimated that it took about four hours to count a single strip of paper, 318 feet long, containing just 64 votes. That amounts to four minutes for each ballot. As electionline.org points out in a recent report, a full manual recount would take weeks to complete at that rate. And this is aside from mechanical problems, such as paper jams, which have emerged in tests of some VVPAT equipment.

Largely due to the paper trail controversy, a number of states are either not compliant with HAVA’s voting equipment requirements, or at risk of being noncompliant once the primary election rolls around. That’s primarily because electronic voting equipment that complies with both HAVA’s disability-access requirements and with state VVPAT requirements wasn’t certified in time for local jurisdictions to make an orderly transition to new technology by 2006.

A case in point is California, one of the first states to enact a VVPAT requirement into state law, where attached printers failed during the pre-certification testing process. New York is in even worse shape, compliance with HAVA’s voting system requirements having been slowed by the controversy over electronic voting security. Both these states have already been targeted by the U.S. Department of Justice for failure to comply with HAVA.

Most recently, the Maryland House voted to put its Diebold touchscreen machines on hold, because they don’t produce a VVPAT. Even though Maryland’s voting machines have an excellent record, in terms of reducing the number of lost votes, legislators in that state have succumbed to the mass panic surrounding electronic voting – and given in to the seductive assumption that paper ballots would provide a simple answer.

The Way Forward

It now appears that a number of states will be out of compliance with HAVA this year, because they won’t have have disability-accessible voting equipment in place or because they have failed to replace their punch-card or lever voting machines. As I have discussed in greater detail here and here, it is doubtful that the VVPAT will provide a workable and effective solution to the concerns raised by electronic voting critics.

That is not to say that all of the concerns that have been raised about electronic voting are illegitimate. The point is that the myopic focus on paper as the one and only solution has had a deleterious effect on the larger discourse over the improvement of voting technology. It is necessary to get beyond this tired debate, and instead pursue agreement on commonly shared ends. A more constructive approach is to step back and consider the underlying democratic values that we want our voting technology to promote. At least four values are especially worth considering.

One of those values is equality, meaning equal access to the voting process for all people, including people with disabilities and non-English proficient voters. It also means providing a feedback mechanism for voters to check their work, in order to minimize disparities in lost votes based on race, education level, poverty, or other characteristics. The conversion to electronic voting machines tends to promote equality, by reducing the number of lost votes and providing greater access to disabled and non-English proficient voters.

Equality is not, however, the only value that must be taken into consideration in the voting process. Two values that have rightly been prominent in the debate over electronic voting are security (resistance to fraud and other forms of manipulation) and transparency (the capacity to produce auditable results in which voters may have confidence). Another value that should be taken into consideration is administrability – having a voting system in place that will actually work as intended, given the limited funds and human resources available to the local jurisdictions that must implement the technology.

This list of values – equality, security, transparency, and administrability – is not meant to be exclusive. There are other ways of defining and categorizing core values that we expect our technology, and our election administration system generally, to serve. This list is instead meant to suggest a different approach to voting technology than that which been predominant. Rather than starting with the proposed solution, whether it’s paper or some other proposed fix, we should start by defining the values that ought to guide the search for better technology. Once we have some general agreement on those values, we should then examine the available evidence – and where necessary, conduct additional research – to assess how well different systems measure up.

Two recent commentaries are helpful in developing a more constructive approach to election administration. One is a this opinion piece in TomPaine.com by one of the foremost critics of contemporary electronic voting technology, David Dill of Stanford University. Dill suggests that the debate over voting technology has been miscast. “Theories of widespread election fraud are highly debatable,” he explains, “encourag[ing] a sense of hopelessness and consum[ing] energy that could instead be focused on long-term changes that could give us elections we can trust.” I agree. Dill is also correct to argue that transparency should be recognized as an integral democratic value, and that better procedures are needed to promote this value.

Where Dill goes wrong, in my opinion, is in concluding that VVPAT requirements may be justified as a means to promote transparency. While the VVPAT may result in a marginal increase in transparency, that enhancement should be tempered by recognition of the practical difficulties in implementing this suggested fix – including the lingering questions about whether voters will actually check the paper records. This makes is questionable as to whether this device will actually promote the value of security. Moreover, it fails to take into consideration other values such as equality and administrability, which are likely to be impaired by the VVPAT requirement.

This point is effectively made in another recent commentary on the voting technology controversy by Roy Saltman, who was among the first to point out the problems with punch-card voting systems and has just published a book on The History and Politics of Voting Technology. In a Q&A with the Nieman Foundation for Journalism at Harvard University entitled Think Paper Trails Will Make Elections Secure? It’s Not That Simple, Saltman highlights the questions of administrability relating to paper trails, observing that: “It has been a hallmark of the members of the many groups that have formed in the past four years to be activists on use of paper trails, or on election fraud in general, that they have made no effort to know the history and literature of their subject and to read the arguments that have been made on all sides.” Saltman properly focuses on the procedures and people who are responsible for running elections, which can taint results regardless of what type of voting equipment is used.

At this stage, the existing research doesn’t support the conclusion that the VVPAT experiment should be extended on a nationwide basis – much less to lock such requirements in place through a federal legislative mandate – particularly when democratic values other than transparency are taken into consideration. On the other hand, the multiplicity of voting equipment being used in different states provides an opportunity to carefully examine what works and what doesn’t. Given that many states will be using VVPAT systems in coming elections, it makes sense to thoroughly evaluate the results of these experiments before proposing nationwide reforms. Fortunately, there are some worthy research efforts going on right now, that may ultimately lead us in a productive direction. They include:

• The work of a team of researchers, including Paul Herrnson of the University of Maryland and Richard Niemi of the University of Rochester on the usability of different voting systems. This includes VVPAT systems, as well as other types of electronic voting equipment.
• The National Institute of Standards and Technology’s work on threats to different types of voting systems, which started with a workshop in the fall.
• The National Academy of Sciences’ attempt to develop a framework for understanding electronic voting which has recommended that “more resources [be] dedicated to understanding how these systems work and to educating election officials and the public on their use.”
• The ongoing work of a team of researchers, including Professor Dill, called ACCURATE (A Center for Correct, Usable, Reliable, Auditable, and Transparent Elections), which is funded by the National Science Foundation. ACCURATE’s public comments on the 2005 voluntary voting system guidelines properly highlighted to consider the values of transparency and security along side other values – such as equality and functionality – and then to assess different voting systems’ performance in each of these parameters.

Whether or not one agrees that contemporaneous paper records are necessary to promote secure and transparent voting, it is clear that they are not sufficient to achieve the multiple values that we expect our voting systems to serve. Given the pressing need for research in this era, it would be a major mistake to press forward with new legislative mandates – particularly on a national level – until the results of the changes mandated by HAVA have become effective. Careful study of state and local election officials’ experience with new technology in the 2006 is an essential prerequisite to recommending further steps, and especially federal mandates, in this area. Rather than throwing good money after bad by requiring technology that may or may not function as intended, it is much more prudent to await the results of this election before making new investments in voting technology.