Dan Tokaji's Blog
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
Friday, August 12
HAVA's Ticking Clock
Recent developments throughout the country provide genuine cause for concern over whether states will comply with the Help America Vote Act's voting system requirements. By 2006, every state is required to have one disability-accessible voting machine at each polling place. Those machines must provide people with disabilities, including blind voters, the same opportunity for privacy and independence as able-bodied voters. Right now, electronic voting machines are the only ones that meet this requirement. In addition, states that received money for the replacement of punch-card and lever voting machines must have new technology in place by 2006 -- the original deadline was 2004, but most states got waivers giving them an extra took years.

2006 may have seemed like plenty of time when HAVA was enacted in 2002, or even during the 2004 election season. But now, there's considerable uncertainty about whether many states will comply with these two voting system requirements. The main complication has been the decision of several states to require that electronic voting machines generate a contemporaneous paper record -- euphemistically known as the "voter verified paper audit trail." The USA Today reports here that 25 states have passed legislation to require a paper trail. I actually think that the number which have required a contemporaneous paper record is less than that. Still, this legislation has thrown a big monkeywrench into states' ability to comply with HAVA's mandates.

The problem is that generating a contemporaneous paper record isn't quite as simple as strapping a printer on to each voting machine. As noted in this UPI story, paper can cause problems of its own including paper jams and resulting lines for voters. In fact, when California recently tested Diebold's paper trail system -- one that many jurisdictions throughout the country are considering -- 10% of the printers jammed. And even if the printers work flawlessly, it's not at all clear that a paper copy will ensure electoral integrity, especially since relatively few voters appear to check the paper records.

The result of all this could be a real mess in the 2006 elections. The State of Mississippi has decided to go with Diebold's paper-trail system, despite the problems in the California test. Meanwhile, Alabama's electronic voting machine panel is deadlocked, according to this report. In Ohio, the only currently certified electronic system that meets the state's paper trail requirement is Diebold's. It's possible that another system, one made by ES&S, may be certified by the state's September deadline for choosing a voting machine (see this report from the Akron Beacon-Journal). Still, that gives counties only two choices for complying with HAVA's mandate, and not much time to get new equipment in place by the 2006 elections.

It's quite possible that many jurisdictions won't have replaced their punch cards by 2006. If that happens, then some states could be required to give some of the money that they've received for voting machine replacement back to the U.S. government. And voters with disabilities (or perhaps, dare to dream, the U.S. Department of Justice) might bring suit against jurisdictions that aren't providing accessible technology at each polling place, as required by HAVA. Only time will tell, but it now appears likely that at least some jurisdictions will be in violation of one or both of HAVA's principal voting system requirements when the 2006 elections roll around.

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Moritz College of Law The Ohio State University