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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Monday, August 29
Confusion Over Lever Machines
Election officials in the Keystone State are sounding like keystone cops. There's disagreement in Pennsylvania over what exactly the Help America Vote Act requires when it comes to lever voting machines, according to this story.

Some county officials in the state are reluctant to get rid of their lever machines. But Pennsylvania state officials have told them that HAVA requires those machines to be replaced. On the other hand, Election Assistance Commission spokesperson Jeannie Layson says that there's nothing in HAVA saying that lever machines must go.

So who's right? Well, it turns out that they both are.

The EAC spokesperson is right that HAVA imposes no general mandate that states get rid of their lever voting machines or, for that matter, their punch cards. Most states, however, received money under section 102 of HAVA, entitled "Replacement of Punch Card or Lever Voting Machines." States receiving money under this provision are required to "ensure that all of the punch card voting systems or lever voting systems in the qualifying precincts" are eliminated by January 1, 2006. (The original deadline was November 2004, but most states got an extension.) States that fail to meet this requirement must pay back the money they received from the federal government, in proportion to the percentage of noncompliant precincts -- i.e., those that are still using punch cards or levers.

According to the EAC's 2004 annual report, Pennsylvania received almost $23 million in section 102 money from the federal government. That means that the state is obligated to ensure that all precincts within the state get rid of their lever machines. If they don't, the state will have to pay some of that money back.

In addition, HAVA requires that all machines used in the 2006 elections have a "manual audit capacity." This applies regardless of whether states took federal money. It specifies that this must be a "permanent paper record" (not to be confused with the contemporaneous paper record, or voter verified paper audit trail that some anti-electronic voting activists are insisting upon.) Pennsylvania. Department of State spokesman Brian McDonald says that the state has determined that lever machines don't meet this requirement, and I think he's probably right.

Finally, HAVA requires that every state have in place at least one disability accessible voting machine at each polling place. This requirement also applies, whether or not a state took HAVA funds. Under section 301 of HAVA, those accessible machines must provide the disabled voters with the "same opportunity for access and participation (including privacy and independence)" that able-bodied voters have. Right now, the only machines that meet this requirement are direct electronic voting machines.

So the bottom line is ... sorry Pennsylvania lever machine fans, but they've got to go.

Update: The Courier Times issued this cryptic correction to yesterday's story, stating "A headline in Monday's Courier Times was unclear. It is up to individual states to determine if lever voting machines meet federal election requirements." Not sure I understand this correction ... and it's not really true. States certainly have an obligation to comply with federal election requirements, but it's not just up to them to determine whether lever machines qualify. If the federal government determines that the machines used by Pennsylvania or any other state don't comply with HAVA, then it could take action against the offending state -- even if state or local officials believe their equipment to be in compliance. Reading between the lines, I suspect that the paper may not have correctly understood the comment made by the EAC's spokesperson.

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