arrowSection 5.4 - Provisional Voting

This topic is monitored by Moritz Law Professor Daniel Tokaji

Print Page

The Help America Vote Act: An Overview

On October 29, 2002, the President signed into law the Help America Vote Act ("HAVA"). 1  The enactment of law followed the controversial 2000 election and almost two years of debate and deliberation over what facets of the United States' election system were in greatest need of improvement. This e-Book entry summarizes the background and most important components of HAVA, including its requirements in the area of voting equipment, registration lists, provisional voting, and voter identification. It also addresses the status of implementation efforts, and problems to look out for in the 2004 elections.

Background

In the immediate aftermath of the 2000 election, a great deal of attention focused on the United States' election system. A number of reports were published, analyzing not only the machines that Americans use to cast their votes, but also other aspects of the election system such as voter registration, poll worker training, overseas ballots, provisional voting, and voter education.

One of the most prominent reports was produced by the National Commission on Federal Election Reform, jointly chaired by former presidents Gerald Ford and Jimmy Carter and commonly known as the "Carter/Ford Commission." 2  As anticipated, the Carter/Ford Commission report found there to be deficiencies in the equipment used to cast and count votes. But this was not the only area in which the commission saw a need for election reform. Other recommendations of the commission included:

  • Improve the accuracy of voter rolls, through statewide computerized registration lists
  • Allow provisional voting by anyone who claims to be qualified to vote in the state,
  • Facilitate voting by citizens overseas, including member of the military,
  • Restore the voting rights of felons once they have completed their sentences,
  • Provide federal funding for voting system improvements,
  • Create a new federal agency, the Election Assistance Commission ("EAC") to develop voting system standards and oversee the implementation of these standards. 3 

Although efforts to enact federal legislation began in 2001, it took the Congress considerable time to enact what eventually became HAVA. 4  The ultimate product was a bipartisan compromise, developed by Reps. Bob Ney and Steny Hoyer in the House and Sens. Chris Dodd and Mitch McConnell in the Senate.

The delay in enacting HAVA centered on disagreement regarding several issues. Foremost among these was the imposition of federal requirements on the states, and the proposal to require first-time voters registering by mail to show identification at the polling place. 5  As Rep. Hoyer put it, "Everyone agrees that we should make it easier to vote . . . and we should make it hard to cheat." 6  The difficult part was determining how to make the voting system open and accessible to all eligible citizens, yet resistant to fraud and error.

Largely due to the intensive efforts of HAVA's principal co-sponsors to forge a compromise, House and Senate conferees reached agreement in early October 2002. The bill passed the House and Senate later that month, and was signed into law on October 29, 2002. 7 

The Basic Requirements of HAVA

HAVA enacts into law some of the recommendations made by the Carter/Ford Commission reports and other studies that examined the United States' voting system in the wake of the 2000 election. Its key components are:

  1. Title I, which authorizes $650 million, half of which is earmarked for the replacement of punch card and lever voting machines.
  2. Title II, creating the Election Assistance Commission and related bodies, and authorizing $3 billion to be distributed to the states.
  3. Title III, which establishes new requirements in the areas of voting technology and election administration in federal elections.

Altogether, the enacted version of HAVA is over 160 pages in length. While a complete analysis of all HAVA's provisions is beyond the scope of the present dicussion, four of the most important changes in the law are discussed below -- specifically, the requirements concerning voting equipment, registration databases, the I.D. requirement, and provisional voting.

Voting Equipment

Among the portions of HAVA that have received the most prominent attention are those having to do with voting equipment. Contrary to some published reports, HAVA does not prohibit punch card ballots, lever machines, or any other particular voting equipment. In fact, Title III of HAVA specifically provides that it shall not be interpreted to prohibit jurisdictions from using the same kind of voting equipment that they used in November 2000. 8  Instead, HAVA provides funds for the replacement of punch card and lever systems, while imposing some general requirements that all voting systems must meet.

Title I of HAVA creates a fund to be used for the "buy out" of punch card and lever voting machines. States qualifying for funds under this section of HAVA are supposed to ensure that all these machines in qualifying precincts within their states are replaced by the November 2004 election. However, Title I allows for a waiver to be granted if the state certifies that it will not, for good cause, meet this deadline. In the event of a waiver, the equipment is to be replace in time for the 2006 elections. Ohio is among the 24 states that have sought a waiver. 9 

The other key provision of HAVA dealing with voting equipment is section 301, which is part of HAVA's Title III. This section requires that, by January 1, 2006, voting systems allow voters to verify their choices and provide them the opportunity to correct their choices, before votes are cast. Voting systems must also notify voters of overvotes. This is commonly known as "notice" or "second chance" technology.

While this provision would seem to ban many current systems, HAVA also provides that jurisdictions using paper-based systems (such as punch cards) may meet this requirement through a voter education program that gives instructions on how to correct mistakes and informs voters of the effect of overvoting. Thus, HAVA does not require that voting systems provide actual notice and the opportunity to correct mistakes.

HAVA does require that all voting systems have an "audit capacity," and that they produce a "permanent paper record" that can be used for manual audits. People with disabilities must also be accommodated, through voting machines that "provide[] the same opportunity for access and participation (including privacy and independence) as for other voters." Jurisdictions can meet this requirement by providing at least one direct record electronic ("DRE") unit or other accessible voting machine in each polling place. Voting systems must also allow alternative language access, for people whose primary language is not English. 10  These requirements take effect January 1, 2006. (For more information on voting technology, see here.)

Statewide Registration Database

Another key component of HAVA is that each state must establish a statewide voter registration database. 11  This database is supposed to include the name and registration information for every registered voter within each states, and to assign a "unique identifier" to each voter. The list is to be coordinated with other agency databases within each state, and accessible electronically to local election officials.

HAVA also regulates the maintenance of these lists, requiring states to ensure that the name of each voter appears on the list, and that the names of voters who are not registered and duplicate names be eliminated. This section of HAVA further requires that voters provide either their driver's license number or social security number -- or, in the case of voters who have neither, that they be assigned identifying numbers. States are required to establish agreements with their state motor vehicle agencies and the Commissioner of Social Security, through which identification numbers can be "matched" to verify identity.

The effective date of HAVA's statewide registration database requirement was January 1, 2004, but was extendable for good cause to January 1, 2006. Over 40 states, including Ohio, have sought a good-cause extension.

The I.D. Requirement

Among the most controversial requirements of HAVA was the provision mandating that certain first-time voters present identification at the polls. 12  The requirement applies to those who registered to vote by mail after January 1, 2003, and have not previously voted in a federal election within the state or jurisdiction.

At the time of voting, these first-time voters must submit either (a) a valid photo I.D., or (b) a current utility bill, bank statement, government check, paycheck, or other government document showing their name and address. 13  However, voters are exempt from this requirement if, at the time of their mail-in registration, they submitted a copy of a current photo I.D., utility bill, bank statement, government check, paycheck, or government document showing their name and address. Voters are also exempt from showing I.D. at the polls, if they submitted their driver's license number or last four digits of their social security number with their mail-in registration, and this information was matched against an existing state I.D. record

The I.D. requirement is effective in the 2004 elections. (For more information on the I.D. requirement, see here.)

Provisional Voting

Provisional voting allows those citizens whose names do not, for whatever reason, appear on registration lists to cast a conditional ballot. In addition, HAVA requires that voters subject to the I.D. requirement who do not present the required identification be permitted to cast provisional ballots.

Section 302 of HAVA requires that election officials notify those who appear at the polling place, but whose names do not appear on the registration list, that they are entitled to cast a provisional ballot. Voters must be allowed to cast a provisional ballot, if they a written affirmation stating that they are entitled to vote in that jurisdiction. If the voter is thereafter determined eligible, then his or her vote must be counted. HAVA also requires that states establish a publicly available information source -- such as a website or toll-free hotline -- that voters may access to determine if their votes were counted. (For more information on provisional voting, see here.)

HAVA Implementation

HAVA delegates several significant implementation responsibilities to the newly-created Election Assistance Commission. The EAC consists of four members appointed by the President, and can only act with the approval of three of those members. Among the EAC's duties are:

  • to develop and adopt voluntary guidelines on provisional voting, statewide voter registration databases, and mail-in registration,
  • to adopt voluntary guidelines on voting equipment,
  • to conduct studies on election administration,
  • to research methods to improve access for voters with disabilities and those who are not proficient in English,

Each state is required to develop a plan explaining how it will comply with the requirements of HAVA. All those plans were submitted to the EAC and have now been published in the Federal Register. 14 

The implementation of HAVA has proceeded more slowly than many people had anticipated at the time of the law's enactment. There are at least two reasons for the slow pace of implementation.

First, the members of the EAC were not selected on the timetable that HAVA mandated. Although HAVA required that the EAC's members be appointed by February 26, 2003 (120 days after HAVA's enactment), the nominees were not formally nominated by the President until October 2003 and were not confirmed until December 2003.

The second reason for delay is that Congress did not fully fund HAVA in fiscal year 2003. Although all of the $650 million in Title I money (half of which was for the buyout of punch card and lever machines) was appropriated, only $833 million of the authorized $1.4 billion was appropriated in fiscal year 2003. 15  In addition, the functioning of the EAC has been hampered by Congress' failure to fully fund this new agency. In fiscal year 2004, only $1.8 million was appropriated for the EAC's functioning, even though HAVA authorized an annual budget of $10 million. 16  The delays in establishing the EAC and in appropriating funding have made states reluctant to move forward, given that they lack certainty that they will be given the financial resources needed to pay for election reform.

The consequence is that election reform remains a work in progress. While HAVA promised significant changes in the way that the United States conducts elections, that promise will not be completely realized in time for the 2004 general election.

In fact, it is quite possible that inconsistencies in the way that HAVA is implemented may give rise to further controversy in this election cycle. If, for example, jurisdictions are not consistent in their treatment of mail-in registration or in the implementation of the I.D. requirement, citizens affected may claim that their rights to equal protection are being denied. So too, if there are inconsistencies in how provisional ballots are treated by different jurisdictions within a state, affected voters may claim that they are being denied equal protection.

Even apart from such equal protection claims, there may be efforts to enforce HAVA's requirements, either in court or through administrative proceedings. If, for example, voters are denied provisional ballots as required by HAVA, they may claim that they are being denied their right to due process. In short, despite the promise of HAVA to restore confidence in the American electoral process, it is entirely possible -- especially in a close election -- that the implementation of HAVA will provide more grist for the litigation mill.

Selected resources on HAVA

Notes

1. Pub. L. No. 107-252, 116 Stat. 1666.

2. The National Commission on Federal Election Reform, To Assure Pride and Confidence in the Electoral Process (2001).

3. Id. at 6-13.

4. See Leonard M. Shambon, Implementing the Help America Vote Act, 3 Election Law Journal 424 (2004).

5. Id. at 428.

6. 60 CQ Weekly 2034 (July 27, 2002).

7. Shambon, supra note 4, at 428.

8. HAVA, § 301(c)(1). As noted below, however, a condition of receiving funds under Title I of HAVA is to replace punch card and lever voting systems in those precincts that use them.

9. Electionline.org, Election Reform: What's Changed, What Hasn't and Why 27(2004).

10. HAVA references section 203 of the Voting Rights Act of 1965 (42 U.S.C. § 1973aa-1a), which sets forth the standard for determining whether a jurisdiction must offer voting materials in a language other than English.

11. HAVA, § 303(a).

12. Electionline.org, Election Reform: What's Changed, What Hasn't and Why 17(2004).

13. HAVA, § 303(b).

14. 69 Federal Register 14000-15232. The Leadership Conference on Civil Rights, Brennan Center for Justice, and DEMOS have prepared a summary of the status of HAVA implementation in all 50 states, see this report from http://www.civilrights.org/issues/voting/hava_chart.pdf.

15. Shambon, supra note 4, at 437.

16. Id. at 438.