Order Code RS20898
Updated January 30September 25, 2003
CRS Report for Congress
Received through the CRS Web
Elections Reform: Overview and Issues
Kevin J. Coleman
Analyst in American National Government
Government and Finance Division
Eric A. Fischer
Senior Specialist in Science and Technology
Resources, Science, and Industry Division
Summary
The remarkable circumstances of the November 2000 Presidential election are quite unlikely
unlikely to be repeated, but Florida’s role in determining the outcome may be
remembered as a
turning point with respect to the nation’s election system. Previously
obscure details of
voting and vote counting became the focus of public attention, and
various state and
national commissions issued reports or recommendations on changing
the voting
process. Some states made plans or began to replace voting equipment and
adopt other
improvements before the 2002 election cycle. Both sessions of the 107th Congress
Congress considered and debated federal election reform legislation, and the Help
America Vote
Act (HAVA, P.L. 107-252) was enacted in October 2002. The Act
creates a new federal agency
with election administration responsibilities, sets
requirements for voting and voterregistrationvoter-registration systems and certain other aspects of
election administration, and provides
federal funding,; but it does not supplant state and
local control over election
administration. Issues for the 108th Congress may include funding,
establishment of the
new agency, and implementation by and impacts on the states. For additional
additional information, see the CRS Electronic Briefing Book on Election Reform. This
report will
be updated periodically to reflect new developments.
Voting Systems and Election Administration
After election day 2000, the media first focused attention on specific problems with
punchcard voting. After that, however,, but broader questions soon arose about error rates, costs,
counting counting
standards, accessibility, and other issues, as election officials considered
upgrading voting systems. Elections in the United States are administered
at the state and
local level, and the federal government hashad not historically set mandatory
standards for
voting systems, nor has it providehad it provided funding to state and local jurisdictions
for the
administration of elections. The Help America Vote Act of 2002 changesHAVA changed that. While
initial reactions to concerns raised by the November 2000 election tended to focus on
Congressional Research Service ˜ The Library of Congress
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initial reactions after the
election had tended to focus on technological fixes such as eliminating punchcards, some
consensus emerged
subsequently that the issues, and the solutions needed, are more complex, and the
legislation reflects those developments. However, the solutions
Congressional Research Service ˜ The Library of Congress
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complex and often involve trade-offs among
diverse goals.
Kinds of diverse goals. HAVA reflects those
developments — it funds replacement of punchcard and lever systems but also broader
improvements to election administration.
Kinds of Voting Systems. Currently, five different technologies are in use — paper
paper ballots, lever machines, punchcards, optical scan, and electronic systems (direct
recording electronic or DRE) — and most — and most
states use more than one kind. Each has
advantages and disadvantages with respect to
error rates, cost, speed, recounts,
accessibility to disabled persons, and other
characteristics. Differences in actual
performance in elections are difficult to measure
accurately, and they depend on many
factors other than the technology, such as the
familiarity of voters with the equipment, the
complexity and design of the ballot, local
standards and practices, the condition of the
equipment, and the level of competence of
pollworkers. P.L. 107-252 funds replacement of punchcard and lever systems pollworkers.
States also have different requirements for voting systems — for example, whether
the full ballot must be displayed on one page, whether votes are tabulated in the precincts
or at a central location, whether straight-ticket voting is provided, and how accessibility
requirements are to be met. Moreover, local election jurisdictions within states differ in how
they they
configure and use the systems to meet local needs. As a result, there is no consensus
on on
whether any particular system is best. Many believe that a diversity of systems
promotes innovation
and inhibits systematic fraud, and is therefore preferable. Others
believe that a uniform
voting system, at least within each state, can be sufficiently secure,
and would be more
efficient and more likely to ensure that all voters have equal
opportunity to cast their
votes. P.L. 107-252HAVA does not require any particular voting
system. It does, however, set
requirements that will influence what systems state and
local election officials choose.
Beginning in 2006, voting systems used in federal
elections must provide for error
correction by voters, manual auditing, accessibility to
disabled persons (for at least one machine per precinct), alternative languages, and federal
error-rate standards. Systems must also maintain voter privacy and ballot confidentiality,
and states are required tomust adopt uniform standards for what constitutes a vote on each
system.
Federal Funding. A central issue has been what role the federal government
should play in addressing the concerns that have been raised about voting systems,
particularly with respect to funding and standards. Estimates of funding needs for voting
equipment replacement have varied, depending on goals, from about $0.5–$5 billion.
That does not include administrative costs, voter education programs, training of
pollworkers, and so forth. Some observers proposed federal grants for upgrading current
systems, or suggested that the federal government should contribute to defraying the cost
to local governments of holding federal elections. Others said that improvements in other
aspects of election administration and in voter education would be more effective than
upgrading technology. Still others stated that an integrated, systemic response is needed
that involves all aspects of election administration. Some observers also stated that
significantly higher investment in research is needed to develop better voting systems.
P.L. 107-252 authorizes $3.86 billion in funding for programs to replace equipment,
improve election administration, improve accessibility, recruit pollworkers, and perform
research and pilot studies.
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Standards. One focus of debate has been whether federal standards or
requirements were necessary, both for voting systems and voter registration. In the 1980s,
the FEC developed voluntary standards for computer-based voting systems (see
[http://www.fec.gov/elections.html]), but not for voter registration systems. Most states
have now adopted those standards, which have recently been updated. Some suggested
that mandatory, rather than voluntary, standards be adopted nationwide. Others proposed
that standards be broadened but remain voluntary, or that the matter be left to state and
local jurisdictions. P.L. 107-252 establishes federal requirements for voting systems,
registration, provisional ballots, and other aspects of election administration, but leaves
the methods of implementation to the states. The Act establishes two enforcement
processes. The U.S. Attorney General may bring civil action with respect to the above
requirements, and states, as a condition for receipt of funds, are to establish administrative
grievance procedures to handle complaints from individuals. system.
Electronic Voting Machine Controversy. The HAVA requirement for accessible
voting systems (at least one per polling place), along with other factors, is expected to
drive states toward adopting DREs. However, there is currently some controversy about
how secure those systems are from tampering. Some experts have called for changes in
the systems before they are more widely adopted, ranging from more sophisticated
computer security to the printing of paper ballots that would be verified by the voter and
hand-counted if the election results were contested. Others believe that procedural and
other safeguards can make DREs sufficiently safe from tampering, that use of printed
paper ballots would create substantial problems, and that the controversy risks drawing
attention away from the demonstrated utility of DREs in addressing known problems of
access to and usability of voting systems.
Federal Funding. A central issue has been what role the federal government
should play in addressing the concerns that have been raised about voting systems,
particularly with respect to funding and standards. Estimates of funding needs for voting
equipment replacement have varied, depending on goals, from about $0.5–$5 billion.
That does not include administrative costs, voter education programs, training of
pollworkers, and so forth. HAVA authorizes $3.86 billion in funding for programs to
replace equipment, improve election administration, improve accessibility, recruit
pollworkers, and perform research and pilot studies. (See Funding section on p. 4.)
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New Agency. Federal activities relating to election administration have previously
been performed by the Office of Election Administration (OEA) of the Federal Election
Commission (FEC). In addition toOther than the voluntary voting system standards, those activities
have been limited essentially to clearinghouse functions, such as publications and reports,
and some administrative responsibilities under the National Voter Registration Act (P.L.
103-31). Some observers expressed concern that the OEA could not function effectively
as part of the FEC, whose primary responsibilities are related to campaign finance.
Others expressed concern that a new federal agency to provide funding and administer
requirements would be cumbersome and risk usurping state and local control over
elections. P.L. 107-252HAVA replaces the OEA with a new, independent, bipartisan federal
agency,
the Election Assistance Commission (EAC). The EAC is authorized for three
fiscal years,
beginning in 2003. Members are appointed to four-year terms and may be reappointed
once.
The Act also establishes two boards, with broad-based state and local membership, and
and a committee to address aspects of voting system standards. The main duties of the EAC
EAC include carrying out grant programs, providing for testing and certification of voting
systems, studying election issues, and issuing voluntary guidelines for voting systems and
the requirements in the Act. The commission will not have any new rule-making
authority and will not enforce the requirements in the Act. The law provides for technical
support and participation by the National Institute of Standards and Technology in
relevant commission activities.
HAVA called for the appointment of commissioners within 120 days of enactment,
which was February 26, 2003. In late May 2003, Democratic leaders in Congress
recommended appointing Ray Martinez and Gracia Hillman to the commission, and the
White House announced on June 6 that the President planned to nominate Republicans
Paul DeGregorio and Deforest B. Soaries. On September 12, the White House announced
the President’s intention to nominate Democrats Martinez and Hillman. HAVA requires
the advice and consent of the Senate in making the appointments. The Senate has not
indicated whether it will conduct hearings once formal nominations have been made or
whether the nominations will be sent directly to the floor without hearings.
Standards. In the 1980s, the FEC developed voluntary standards for computerbased voting systems, although not for voter registration systems. Most states have now
adopted those standards, which have recently been updated. HAVA establishes federal
requirements for voting systems, registration, provisional ballots, and other aspects of
election administration, but leaves the methods of implementation to the states. The Act
establishes two enforcement processes. The U.S. Attorney General may bring civil action
with respect to the above requirements, and states, as a condition for receipt of funds, are
to establish administrative grievance procedures to handle complaints from individuals.
Congressional Authority. Some observers expressed concern over Congress’s
authority to require states to meet election administration standards. However, the U.S.
Constitution gives Congress the authority to regulate congressional elections (see CRS
Report RL30747, Congressional Authority to Standardize National Election Procedures).
Prior examples of Congress’s use of that authority include, among other laws, the Voting
Rights Act (see 42 USC 1973; and CRS Report 95-896, The Voting Rights Act of 1965,
As Amended: Its History and Current Issues), which prohibits discriminatory voting
practices and, and the Voting Accessibility for the Elderly and Handicapped Act, which
sets some requirements for elections with respect to accessibility (see 42 USC 1973aa-1a,
6, and ee). Congress can also attach conditions to the receipt of any funding, such as for
voting systems or election administration. Such conditions are included in P.L. 107-252,
for example with respect to the grievance procedures described above.
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Other Issues from the 2000 Election
Reports of problems in Florida and elsewhere during the 2000 election raised
concerns about specific failures and the overall integrity of the election system: voting
problems and irregularities; problems with ballots from military and overseas voters; the
electoral college; and media projections of state outcomes before polls had closed.
Voting Problems and Irregularities. Some were concerned that the National
Voter Registration Act (42 USC 1973gg et seq.), the “Motor Voter” law, may have added
ineligible voters to the registration rolls. For example, there were media reports that
hundreds of felons had voted in the November 2000 election, even though only a few
states automatically restore voting rights for ex-offenders. There were also reports that
some new motor voter registrants were unable to cast ballots on election day because their
registrations could not be confirmed. And in Florida, some eligible voters reportedly were
improperly purged from the voter rolls when counties checked registration lists before the
election. Allegations of voter intimidation and voting irregularities prompted several
investigations. In March 2001, Attorney General Ashcroft announced a Justice
Department voting rights initiative (the Voting Rights Section of the Civil Rights Division
enforces federal voting rights statutes; see [http://www.usdoj.gov/crt/voting]). P.L. 107252 requires each state with voter registration to have a single, accurate, statewide
registration system, and contains identification provisions for first-time voters.
Military and Overseas Voters. Members of the military and U.S. citizens who
live abroad are eligible to vote absentee in federal elections under the provisions of the
Uniformed and Overseas Citizens Absentee Voting Act (42 USC 1973ff-6). Controversy
in Florida concerning military and overseas ballots centered on two issues — the
requirement that ballots must be postmarked by election day and the deadline for counting
them (10 days after the election) — neither of which is currently addressed in federal law.
Because the law leaves such details to the states, postmark requirements for returning
ballots vary.
The law is administered by the Secretary of Defense through the Federal Voting
Assistance Program office in the Department of Defense ([http://www.fvap.ncr.gov]).
After the election, the Defense Department Inspector General investigated issues with
military and overseas citizens’ ballots and issued a report (No. D-2001-145) in June 2001
(see [http://www.dodig.osd.mil/audit/reports/01report.htm]). P.L. 107-252 addresses
problems with voting by those covered by the existing federal law (see CRS Report
RS20764, The Uniformed and Overseas Citizens Absentee Voting Act: Background and
Issues for the 107th Congress). The Defense Authorization Act for FY2002 (P.L.
107-107), also includes provisions concerning uniformed services voters.
Electoral College. For the first time since 1888, the winner of the popular vote
in the election did not also win a majority of the electoral college vote. President Bush
is the fourth President to win the Presidency despite losing the popular vote, the others
being Presidents J. Q. Adams (1824), Hayes (1876), and Harrison (1888). Vice President
Gore won a plurality of 537,179 in the popular vote, but Governor Bush won 5 more
electoral votes (271 versus 266). Controversy in the 2000 election renewed calls to
abolish or modify the electoral college (see CRS Report RL30804, The Electoral College:
An Overview and Analysis of Reform Proposals; and CRS Report RL30844, The
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Electoral College: Reform Proposals in the 107th Congress). P.L. 107-252 does not
address this issue.
Uniform Poll Closing. There was renewed interest in uniform poll closing
because of early and inaccurate media projections on election night in the 2000 election.
Furthermore, proponents of uniform poll closing argue that projections of the winner in
key states may depress voter turnout on the West Coast if it appears that the election is
or will be decided before polls close in the West. Several uniform poll closing bills have
been introduced. P.L. 107-252 requires a study on this issue.
Alternative Methods for Registration and Voting
Because states, rather than the federal government, have administered elections since
the country was founded, laws and practices vary considerably with respect to the many
complex details of the voting process. Innovations in some states, which may now be
considered more broadly, include large-scale absentee voting, early voting, same-day
voter registration, election day holidays, and Internet voting.
Absentee Voting. Voters in many states can request an absentee ballot for
specific reasons only, such as illness or travel, that would prevent the voter from casting
a ballot in person on election day. But recent trends in some states, including California
and Washington, allow any voter to request an absentee ballot, sometimes called “no
fault” absentee voting. In Oregon, elections are conducted entirely by mail. All registered
voters automatically receive their ballots through the Postal Service, without needing to
make a ballot request, in contrast to absentee procedures in other states.
Early Voting. In some states, voters may cast a ballot in person before election day
through an early voting program. There are many varied approaches, and the number of
states using it is growing. According to the Elections Reform Task Force of the National
Conference of State Legislatures, at least 26 states have some form of early voting.
Same Day Registration. Potential voters may register in person on election day
in six states: Idaho, Maine, Minnesota, New Hampshire, Wisconsin, and Wyoming.
Election day registration accommodates those who wish to participate but failed to
register by the close of the registration period. In some jurisdictions, eligible voters must
go to the voter registrar’s office or board of elections to complete the form, while in
others, they may do so at the polling place.
Election Day Holiday. According to the FEC, 12 states designate election day as
a state holiday, although whether schools are closed and state employees are off varies
(see [http://www.fec.gov/pages/faqvdayeprocedures.htm]). An additional 20 states give
state employees some time off to vote, and 26 states also provide for private sector
employees to take time off to vote. P.L. 107-252 includes a study on this issue.
Internet Voting. Internet voting was used on a very limited basis during the 2000
election cycle. The Arizona Democratic party conducted a March 2000 primary using
both the Internet and traditional polling places. In the November 2000 election, the
Defense Department conducted a small pilot program in which voters requested and
submitted absentee ballots via the Internet. Although interest has grown, Internet voting
from remote locations raises concerns about voter identification, ballot secrecy, and
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access for all potential voters. It is unlikely to be widely adopted until such problems are
resolved (see CRS Report RS20639, Internet Voting: Issues and Legislation). P.L. 107252 includes a study on this issue.
National and State Initiatives
After the November 2000 election, both national and state task forces and other
initiatives were established to address voting issues. Recommendations for federal action
were issued by ad hoc groups such as The National Commission on Federal Election
Reform (the Ford-Carter Commission); professional associations of election officials such
as the Election Center; academic groups such as the Caltech/MIT Voting Project ; and
others such as the Constitution Project’s Election Reform Initiative. While emphases and
proposals varied, there was broad agreement among most or all on several
recommendations, including the following:
federal funding for technology upgrades,
use of formula grants for at least some purposes,
conditions for receiving federal funds,
improvements in the voting system standards;
expansion of data collection and dissemination,
enhancement of functions performed by the OEA,
statewide, networked voter registration systems,
broader use of provisional ballots,
actions to facilitate voting by military and overseas citizens,
actions to ensure equal voting opportunity and accessibility,
improvements in voter education,
adoption by states of specific criteria for what is a valid vote, and
procedures to ensure meeting statutory certification and other deadlines.
P.L. 107-252 contains provisions relating to all of those recommendations.
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Issues for the 108th Congress
Funding for the programs authorized in the Help America Vote Act is still
uncertain. Appropriations for the programs have not yet been finalized for FY2003, as
agencies continue to operate under a continuing resolution. The Senate passed an
omnibus appropriations bill (H.J.Res. 2, as amended) on January 23. The bill includes
$1.55 billion for an election reform grant program but does not specify how funds should
be allocated among the programs authorized in P.L. 107-252. The House has not yet
considered an omnibus bill. The House version of the FY2003 Treasury/Postal
appropriations bill (H.R. 5120) in the 107th Congress provided $200 million for election
reform but was passed before the Help America Vote Act was enacted. The FY2002
supplemental appropriations (P.L.107-206) provided $400 million for election reform as
part of the "contingent emergency spending" portion of the appropriation, which did not
receive the required presidential approval. Funding below authorized levels may raise
concerns among some observers about unfunded mandates. However, most requirements
in the Act do not go into effect immediately. Because the EAC is a new agency with
more complex responsibilities and structure than the OEA that it replaces, issues are likely
to arise with respect to its establishment and the implementation of its programs. One
question is whether time frames established in the Act will be met, especially given the
delay in enacting FY2003 appropriationsHAVA, for
example with respect to the grievance procedures described above.
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Alternative Methods for Voting
State laws and practices vary considerably with respect to the many complex details
of the voting process. Innovations in some states, which may now be considered more
broadly, include large-scale absentee voting, early voting, and Internet voting.
Absentee Voting. Voters in many states can request an absentee ballot only for
specific reasons that would prevent the voter from casting a ballot in person. But recent
trends in some states, including California and Washington, allow any voter to request
such a ballot, sometimes called “no fault” absentee voting. Oregon conducts its elections
entirely by mail — all registered voters receive their ballots through the Postal Service.
While the percentage of votes cast by absentee or mail ballot has been increasing in recent
elections, some observers have expressed concerns that the method is more vulnerable to
certain kinds of fraud and coercion of voters than is balloting at the polling place.
Early Voting. In some states, voters may cast a ballot in person before election day
through an early voting program. There are many approaches, and the number of states
using it is growing. According to the National Conference of State Legislatures, at least
26 states have some form of early voting. Some have criticized early voting as distorting
to the electoral process and being open to certain kinds of fraud and abuse.
Internet Voting. Internet voting was used on a very limited basis during the 2000
election cycle. The Arizona Democratic party conducted a March 2000 primary using
both the Internet and traditional polling places, and in the November 2000 election, the
Defense Department conducted a small pilot program in which voters requested and
submitted ballots via the Internet; the experiment is slated to be repeated in 2004.
Although interest has grown, Internet voting from remote locations raises concerns about
voter identification, ballot secrecy, and access for all potential voters. It is unlikely to be
widely adopted until such problems are resolved (see CRS Report RS20639, Internet
Voting: Issues and Legislation). HAVA requires a study on this issue.
Funding Under the Help America Vote Act
HAVA establishes several grant programs (see table below for authorized amounts):
Election Administration Improvements. Provides expedited, one-time formula payments
for general election administration improvements to states that apply, with a $5 million
minimum combined payment per state for this and the replacement program below.
Administered by General Services Administration (GSA). (Sec. 101.)
Replacement of Punchcard and Lever Machine Systems. Provides expedited, one-time
formula payments to replace punchcard systems and lever machines in qualifying states,
with a $5 million minimum combined payment per state for this and the improvements
program above. Administered by GSA. (Sec. 102.)
Payments to Meet Election Requirements. Provides annual formula payments to states to
meet the Act's requirements. Requires a 5% match and submission of a state plan.
Administered by the Election Assistance Commission (EAC) created in the Act (see
below). (Sec. 251-258.)
Payments To Assure Accessibility. Provides payments to states to make polling places
accessible to persons with disabilities. Requires application. Administered by Department
of Health and Human Services (HHS). (Sec. 265-265.)
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Payments for Protection and Advocacy Systems. Provides payments to state protection
and advocacy systems to ensure electoral participation by persons with disabilities.
Requires application. Administered by HHS. (Sec. 291-292.)
Grants for Research and Pilot Programs. Provides grants for research to improve voting
technology (Sec. 271-273) and for pilot programs to test new voting technology (Sec.
281-283). Requires application. Administered by EAC.
Student Programs. Establishes three programs, one to recruit college students as
pollworkers (Sec. 501-503), one to recruit high school students (Sec. 601), and one to
provide grants for the National Student and Parent Mock Election (Sec. 295-296).
Funding Authorizations in the Help America Vote Act (HAVA)
Program
Authorizations ($millions) per Fiscal Year
2003
2004
2005
2006
Total
Election Administration
Improvement
325.0
325.0
Punchcard/Lever Machine
Replacement
325.0
325.0
Election Requirements
1,400.0
1,000.0
600.0
3,000.0
Accessibility
50.0
25.0
25.0
100.0
Protection and Advocacy
10.0
10.0
10.0
Research
20.0
20.0
Pilot Programs
10.0
10.0
College Program
5.0
a
a
a
5.0+
High School Program
5.0
a
a
a
5.0+
Mock Election
0.2
a
a
a
0.2+
EAC
10.0
10.0
10.0
Total
2,160.2
1,045.0
645.0
10.0
40.0+
30.0
10.0
3,860.2+
a: sums necessary.
+: amount shown plus sums necessary for subsequent years.
FY2003 and FY2004 Funding. The FY2003 omnibus appropriations bill (H.J.Res. 2,
H.Rept. 108-10, P.L. 108-7), signed into law on February 20, includes $1.5 billion for
election reform programs authorized by HAVA, including:
! $650 million combined for the election administration improvement and
voting system replacement payments to be administered by GSA (with
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no specific allocation designated for either program and a maximum of
$500,000 for administrative costs),
! $830 million for requirements grants (with a maximum of 0.1% to be
paid to any territory), and
! $20 million for other programs — $13 million for accessibility grants, $2
million for protection and advocacy programs,$1.5 million each for the
college and high school programs, and $2 million for the EAC.
P.L 108-7 also includes $15 million for one time payments to certain states that had
obtained optical scan or electronic voting systems prior to the November 2000 election.
The President's budget request for FY2004 includes $500 million, one-half the
amount authorized, to fund EAC requirements grants and administration. No funds are
specifically requested for the other programs described above. Funding below authorized
levels may raise concerns among some observers about unfunded mandates or failure to
resolve problems identified after the November 2000 election. However, most
requirements in the Act do not go into effect immediately.
The FY2004 Transportation, Treasury, and Independent Agencies Appropriations
Act, H.R. 2989, as passed by the House on September 20, 2003, includes $495 million
for grant programs authorized under HAVA and $5 million for the EAC. The Senate
version, S. 1589, reported by the Senate Appropriations Committee on September 8
(S.Rept. 108-146), provides $500 million, of which not more than $800,000 is to be used
for EAC administrative expenses.
Title 1 Funding Administered by GSA. The General Services Administration
(GSA) disbursed all section 101 (election administration improvements) and section 102
(replacement of punch card and lever machine systems) funds to states in June 2003. All
states and territories received payments for election administration improvements, based
on a formula using each state's voting age population. Payments for the replacement of
punch card and lever voting systems were made to all states that applied for the program.
Total disbursements for both programs were $649.5 million.
State Implementation of the Help America Vote Act
One result of the delay in establishing the EAC is that states cannot apply for
payments to meet HAVA requirements, yet deadlines for meeting those requirements
exist and some have already passed. Furthermore, the ability of states to meet the
requirements without additional federal funding is hampered by budget difficulties in
many states. The lack of funding and the impending deadlines create a difficult situation
during a transition period when far-reaching changes to the voting process have been
mandated by federal law. While the states have received some funding from GSA, the
greater part of federal funding will be disbursed by the EAC. Specific information on
individual state progress in meeting the requirements may be found at
www.electionline.org/index.jsp.