Order Code RS20898
Updated March 29September 2, 2004
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
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 systemsystems. Previously
obscure details of voting and vote counting becamehave become 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 created a new federal
agency with election administration responsibilities, sets
set requirements for voting and
voter-registration systems and certain other aspects of
election administration, and provides
provided federal funding; but it doesdid not supplant state and
local control over election
administration. Issues for the 108th Congress includehave included funding,
establishment of
the new agency, and implementation by and impacts on the states. For
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, but broader questions soon arose about error rates, costs, counting
standards, accessibility, and other issues. Elections in the United States are administered
at the state and local level, and the federal government had not historically set mandatory
standards for voting systems, nor had it provided funding to state and local jurisdictions
for the administration of elections. HAVA changed that. While 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
Congressional Research Service ˜ The Library of Congress
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complex and often involve trade-offs among diverse goals. HAVA reflects those
developments — it funds replacement of punchcard and lever systems but also broader
Issues for the 109th
Congress may well depend on the nature and extent of any problems identified in the
November 2004 Presidential election, but may include funding, reauthorization of
HAVA programs, and the security of voting systems. For 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
Elections in the United States are administered at the state and local level, and the
federal government had not historically set mandatory standards for voting systems, nor
had it provided funding to state and local jurisdictions for the administration of elections.
HAVA changed that. While initial reactions after the 2000 election had tended to focus
on technological fixes such as eliminating punchcards, a consensus emerged subsequently
that the issues, and the solutions needed, were more complex and often involved tradeCongressional Research Service ˜ The Library of Congress
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offs among diverse goals. HAVA reflects those developments — it funded replacement
of punchcard and lever systems but also broader improvements to election administration.
Kinds of Voting Systems. Currently, five technologies are used — paper ballots,
lever machines, punchcards, optical scan, and direct recording electronic (DRE) systems.
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 depend on many factors, such as the design and condition of the system,
the familiarity of voters with it, the complexity and design of the ballot, local standards
and practices, and the level of competence ofand preparation of officials and pollworkers.
There is no consensus on whether any one technology is best. States have different
practices and requirements, such as whether the full ballot must be displayed on one page, whether
whether votes are tabulated in the precincts or at a central locationcentrally, whether straight-ticket voting
is provided is
allowed, and how accessibility requirements are to be met. Local jurisdictions also
differ differ
in how they configure and use the systems to meet local needs. Many believe that
a a
diversity of systems is preferable because it promotes innovation and inhibits systematic
fraud. 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 an equal opportunity to cast their votes. HAVA does not require any particular voting
voting system, but it sets requirements that will influence what systems election officials
choose.
Beginning in 2006, voting systems used in federal elections must provide for error
correction by voters, manual auditing, accessibility, alternative languages, and federal
error-rate standards. Systems must also maintain voter privacy and ballot confidentiality,
and states must adopt uniform standards for what constitutes a vote on each system.
Electronic Voting Machine Controversy. The HAVA requirement for
accessible voting systems (at least one per polling place) and other factors are expectedhave begun
to drive states toward adoptingto adopt DREs. However, there is currently some controversy about
controversy exists about how secure those
systems are from tampering. Some experts believe that the problem is
serious enough to
require 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 too many 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 Under the Help America Vote
problems of access to and usability of voting systems. One state, Nevada, will require
DREs to provide a voter-verified paper trail for the November 2004 election. See CRS
Report RL32139 and CRS Report RL32526 for discussion of these issues and proposed
legislation.
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. 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
Under the Help America Vote Act,” below.)
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New Agency. Federal activities relating to election administration havewere previously
been performed by the Office of Election Administration (OEA) of the Federal Election
Commission (FEC). Other than the voluntary voting system standards, those activities
have been limited essentially to clearinghouse functions, such as publications and reports,
were limited to clearinghouse functions and some administrative responsibilities under
the National Voter Registration Act (P.L.
103-31). HAVA 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 2003replaced the OEA with the
Election Assistance Commission (EAC), an independent, bipartisan federal agency, and
authorized funding for it through FY2005. Members are appointed to four-year terms and
may be reappointed
once. The act also establishesestablished two boards, with broad-based state and
local membership,
and a committeetechnical committee, to address aspects of voting system standards
standards and certification. The main duties of the
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 willdoes not have any new rule-making authority
and willdoes not enforce the requirements in the act
HAVA requirements. The law provides for technical support
and participation by the
National Institute of Standards and Technology (NIST) in relevant
commission activities.
HAVA called for the appointment of four commissioners within 120 days of
enactment in October 2002. The White House forwarded nominees to the Senate October
3, 2003, and the Senate confirmed them on December 9. The commissioners met in a
private session on January 5, 2004, and held their first public meeting on March 23.
Subsequently, the EAC has held several additional public meetings and hearings on issues
such as the security of electronic voting systems and best practices in election
administration. It released a recommended set of best practices for local election
administrators in August. The EAC boards and technical committee have also met, and
the agency has begun distributing requirements payments (see section on funding below).
Standards and Requirements. In the 1980s, the FEC developed voluntary
standards for computer-based voting systems, although not for voter registration systems.
Most states have now adopted those standards, which have recently been updated. HAVA
codifies the development and regular updating of those standards, which it calls voluntary
guidelines. It also establishes federal requirements for voting systems, registration,
provisional ballots, and other aspects of election administration. It leaves the methods of
implementation to the states but requires the EAC to issue voluntary guidancecommissioners 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. The Senate Rules
and Administration Committee held a hearing on the nominations on October 28; Hillman
and DeGregorio have been nominated for two-year terms and Soaries and Martinez for
four-year terms. All nominees are eligible to be reappointed to one additional four-year
term. The Senate confirmed the nominees on December 9. The commissioners met in a
private session on January 5, 2004; Commissioner Soaries will serve as chairman.
The EAC held its first meeting on March 23 and announced that $2.3 billion in Title
II funds would be disbursed following publication of state plans in the Federal Register
on March 24 and a subsequent 45-day public comment period. Reportedly, the
commission plans to hold a hearing on electronic voting issues.
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 before HAVA
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).
Report RL30747). 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
95-896), which prohibits discriminatory voting
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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 HAVA, for
example example, with respect to the grievance procedures described above.
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
grievance procedures described above.
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Election Security. Concerns about terrorist attacks have led to questions about
the security of federal elections. Current federal law prohibits troops or other armed
personnel under federal control from being present at polling places except “to repel
armed enemies of the United States” (18 USC 592), and state laws vary concerning the
role of police in securing polling places. Currently, the President does not appear to have
the authority to postpone elections, for example in response to a terrorist attack, although
states may do so and occasionally have in response to emergencies. Congress could
potentially grant such authority to the President (see CRS Report RL32471).
Alternative Methods for Voting
State laws and practices vary with respect to the many complex details of the voting
process. Innovations in some states 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
according to the National Conference of State Legislatures (NCSL), 26 states 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 itearly voting is growing. According to the National Conference of State Legislatures, at least
26NCSL, 31 states have some form of early voting. Someit.
Some observers have criticized early voting as distorting
to the electoral process and
being open to certain kinds of fraud and abuse. Proponents argue that early voting can
increase turnout and lessen the risk of certain kinds of distortions.
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 iswas slated to be repeated in 2004.
Although interest on a larger
scale in 2004 but was cancelled, largely because of security concerns. Although interest
has grown, Internet voting from remote locations raises concerns about
voter voter
identification, ballot secrecy, risk of cyberattack, 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 establishesestablished several grant programs (see table below for authorized amounts):
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Election Administration Improvements. ProvidesProvided expedited, one-time formula
payments for general election administration improvements to states that applyapplied,
with a $5 million minimum combined payment per state for this and the
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replacement program below. Administered by General Services Administration
(GSA). (Sec. 101.)
Replacement of Punchcard and Lever Machine Systems. ProvidesProvided expedited, onetime formula payments to replace punchcard systems and lever machines in
qualifying states, with a $5 million minimum combined payment per state for this
and the improvements program above. Administered by GSA. (Sec. 102.)
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Payments to Meet Election Requirements. Provides annual formula payments to
states to meet the act’s requirements. Requires a 5% match and submission of a
state plan. Administered by the Election Assistance Commission (EAC) created
in the act (see below). (Sec. 251-258.)
Payments to Assure Accessibility. Provides payments to states to make polling
places accessible to persons with disabilities. Requires application. Administered
by Department of Health and Human Services (HHS). (Sec. 265-265.)
Payments for Protection and Advocacy Systems. Provides payments to state
protection and advocacy systems to ensure electoral participation by persons with
disabilities. Requires application. Administered by HHS. (Sec. 291-292.)
Grants for Research and Pilot Programs. Provides grants for research to improve
voting technology (Sec. 271-273) and for pilot programs to test new voting
technology (Sec. 281-283). Requires application. Administered by EAC.
Student Programs. Establishes three programs, one to recruit college students as
pollworkers (Sec. 501-503), one to recruit high school students (Sec. 601), and
one to provide grants for the National Student and Parent Mock Election (Sec.
295-296).
Funding Authorizations in the Help America Vote Act (HAVA) Funding
Program
AuthorizationsTotal
Actuala
FY03-05
Total
325.0
325.0
325.0
325.0
Authorization ($millions) per Fiscal Year
2003
Election Administration
325.0
Improvement
Punchcard/Lever
325.0
Machine Replacement
Election Requirements
1,400.0
Accessibility
50.0
Protection and Advocacy
10.0
Research
20.0
Pilot Programs
0.0
College Program
5.0
High School Program
5.0
Mock Election
0.2
EAC
10.0
Total
2,160.2
2004
2005Improvement
Punchcard/Lever Machine
Replacement
Election Requirements
Accessibility
Protection and Advocacy
Research
2004
2005
2006
Total
325.0
325.0
325.0
325.0
1,400.0
50.0
10.0
20.0
1,000.0
25.0
10.0
600.0
25.0
10.0
10.0
3,000.0
100.0
40.0+
20.0
Pilot Programs
College Program
0.0
5.0
a
a
a
10.0
5.0+
High School Program
Mock Election
5.0
0.2
a
a
a
a
a
a
5.0+
0.2+
EAC
10.0
10.0
10.0
Total
2,160.2
1,045.0
645.0
30.0
10.0
3,860.2+
ab
b
b
10.0
1,045.0
b
b
b
10.0
645.0
2006
10.0
b
b
b
10.0
3,000.0 2,368.0
100.0
33.0
40.0+
12.0
20.0
10.0
5.0+
2.25
5.0+
2.25
0.2+
0.2
30.0
14.0
3,860.2+ 3,082.0
a: funds appropriated for FY2003 and FY2004, plus the Administration request for FY2005.
b: sums necessary.
+: amount shown plus sums necessary for subsequent years.
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Appropriations. The FY2003 omnibus appropriations bill (H.J.Res. 2, H.Rept.
108-10, P.L. 108-7), signed into law on February 20, 2003, contained $1.5 billion for
election reform programs authorized by HAVA, including:
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$650 million combined for the election administration improvement and voting
system replacement payments to be administered by GSA (with no specific
allocation designated for either program and a maximum of $500,000 for
administrative costs),
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$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 included $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 included $500 million, one-half the
amount authorized, to fund EAC requirements grants and administration. No funds were
specifically requested for the other programs described above. The House-passed
Transportation/Treasury Appropriations bill, H.R. 2989, included $495 million for HAVA
grant programs and $5 million for the EAC. The Senate bill, S. 1589, provided $500
million, of which not more than $800,000 was to be used for EAC administrative
expenses. The Senate passed H.R. 2989 with an amendment providing $1.5 billion
altogether for HAVA grant programs. The final omnibus final omnibus
appropriations bill, H.R. 2673,
signed into law on January 23, 2004 (P.L. 108-199), contains $1,516,200,000
contained just over $1.5 billion for election
reform, including $1.0 billion for
requirements payments, $500 million for election
reform programs, $10 million for
accessibility grants, $5 million for protection and
advocacy systems, and $1.2 million for
the EAC.
The President’s budget request for FY2005 includes $65 million for election
reform, of which $40 million is additional funding for requirements grants and $10
million is for EAC administrative expenses. The request also includes $5 million for
protection and advocacy systems and $10 million for accessibility grants.
The combined total appropriations for election reform for FY2003-FY2005
(assuming funding at the requested level for FY2005) is approximately $3.08 billion. The
total authorization for FY2003-FY2005 is approximately $3.85 billion The House
Transportation and Treasury Appropriations Subcommittee mark-up includes an
additional $5 million for the EAC.
Title I 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
With the publication of state plans in the Federal Register on March 24, states and
territories will bewere eligible to receive $2.3 billion in federal funds, requirements payments,
following a 45-day
public comment period. States and territories then need to file a certification with the
EAC to receive a payment. The public comment period and filing of a certification with the EAC. The
$2.3 billion includes funds appropriated in FY2003 and
FY2004 which could not be
allocated until establishment of the EAC and publication of
the state plans. The General Services Administration will disburseGSA is
disbursing the funds, as it did with
Title I payments made in June 2003. As of August 2004, the GSA has
distributed $1.2 billion in EAC-approved requirements payments.