Order Code RS20898
Updated February 4, 2005
CRS Report for Congress
.Received through the CRS Web
Elections Reform: Overview and Issues
Updated June 29, 2005
Kevin J. Coleman and Eric A. Fischer
Analyst in American National Government
and Senior Specialist in Science and Technology
Government and Finance Division
and Resources, Science, and Industry Division
Summary
Since the November 2000 Presidential election, previously obscure details of
voting and vote counting have become the focus of ongoing public attention and
legislative action at the state and federal levels. 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 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 created a new federal agency with election administration
responsibilities, set requirements for voting and voter-registration systems and certain
other aspects of election administration, and provided federal funding; but it did not
supplant state and local control over election administration. Issues for the 108th
Congress included funding, establishment of the new agency, and implementation by
and impacts on the states. 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. This report will be updated Those issues remain for the 109th Congress, with additional
emphasis on the January 2006 deadline for states to meet several HAVA requirements
and the controversy over paper audit trails for electronic voting systems. Several bills
have been introduced to address those and other issues. 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 tradeoffs among diverse goals. HAVA reflects those developments — it funded replacement
of punchcard and lever systems but also broader improvements toin election administration.
Congressional Research Service ˜ The Library of Congress
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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 system has advantages and disadvantages with respect
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 and preparation of officials and pollworkers.
There is no consensus on whether any one technology is best, although use of optical
scan and DRE systems has been increasing for several years. States have different
practices and requirements, such as whether the full ballot must be displayed on one page,
whether votes are tabulated in precincts or centrally, whether straight-ticket voting is
allowed, and how accessibility requirements are to be met. Local jurisdictions also differ
in how they configure and use the systems to meet local needs. Many believe that 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 HAVA does not require
any particular
voting system, but it sets requirements that will influence what systems election officials
officials choose. Beginning in 2006, systems used in federal elections must provide for error
error correction by voters, manual auditing, accessibility, alternative languages, and federal
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 have begun
to drive states to adopt DREs. However, 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. One state, Nevada, will require
DREs required 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
legislationSeveral additional
states have since instituted related requirements. The Senate Rules and Administration
Committees held a hearing on the paper audit-trail issue on June 21, 2005. See CRS
Report RL32139 for discussion of these issues.
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.)
New Agency. Federal activities relating to election administration were previously
performed by the Office of Election Administration (OEA) of the Federal Election
Commission (FEC). Other than the voluntary voting system standards, those activities
were limited to clearinghouse functions and some administrative responsibilities under the
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National Voter Registration Act (P.L. 103-31). HAVA replaced the OEA with the
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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 established two boards, with broad-based state and
local membership, and a technical committee, to address aspects of voting system
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 does not have any new rule-making authority and does not enforce
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, theThe 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
2004. The EAC boards and technical committee have also met, and
the agency has begun distributing
distributed 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 updatedwere updated in 2002. 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 guidance. The act
EAC
issued its voluntary voting system guidelines for public comment on June 27, 2005. The
act establishes two enforcement processes. The U.S. Attorney General may bring civil action
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). 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), 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 HAVA, for example, with respect to the grievance procedures
described above.
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
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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
Alternative Methods for Voting
Absentee Voting. Voters in many states can request an absentee ballot only for specific
specific reasons that would prevent the voter from casting a ballot in person. But according to the
National Conference of State Legislatures (NCSL), 26 statesmany
states now 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 — and the percentage of votes cast by absentee or mail ballot has been increasing in recent
elections, somevia absentee ballot
has increased in other states, especially Washington and California, over the past several
elections. Some observers have expressed concerns that the methodabsentee voting is more
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vulnerable to
certain kinds of fraud and coercion of voters than is balloting at the polling place.
place, but the trend toward increased absentee voting is expected to continue.
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 early voting
is growing. According to the NCSL, 31 states have is growing, with most states now having some form of it. 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 was used on a very limited basis during
the 2000 election cycle
Internet voting. The Arizona Democratic party conducted a March 2000 primary
using both the Internet and traditional polling places, and in. In the November 2000 election,
the the
Defense Department conducted a small pilot program in which voters requested and
submitted ballots via the Internet; the experiment was slated to be repeated 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
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). HAVA requires a study on this issue.
Funding Under the Help America Vote Act
HAVA established several grant programs (see table below for authorized amounts):
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Election Administration Improvements. Provided expedited, one-time
formula payments for general election administration improvements to
states that applied, 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. Provided
expedited, one-time formula payments to replace punchcard systems and
lever machines in qualifying states, with a $5 million minimum combined
payment per state for this and the improvements program above.
Administered by GSA. (Sec. 102.)
Payments to Meet Election Requirements. Provides annual formula
payments to states to meet the act’s requirements. Requires a 5% match
and submission of a state plan. Administered by the Election Assistance
Commission (EAC) created in the act (see below). (Sec. 251-258.)
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Payments to Assure Accessibility. Provides payments to states to make
polling places accessible to persons with disabilities. Requires
application. Administered by Department of Health and Human Services
(HHS). (Sec. 265-265.)
Payments for Protection and Advocacy Systems. Provides payments to
state protection and advocacy systems to ensure electoral participation by
persons with disabilities. Requires application. Administered by HHS.
(Sec. 291-292.)
Grants for Research and Pilot Programs. Provides grants for research to
improve voting technology (Sec. 271-273) and for pilot programs to test
new voting technology (Sec. 281-283). Requires application.
Administered by EAC.
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Student Programs. Establishes three programs, one to recruit college
students as pollworkers (Sec. 501-503), one to recruit high school
students (Sec. 601), and one to provide grants for the National Student
and Parent Mock Election (Sec. 295-296).
Help America Vote Act (HAVA) Funding
Program
Total
Actuala
FY03-05
Total
325.0
325.0
325.0
325.0
Authorization ($millions) per Fiscal Year
2003
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
2005
1,000.0
25.0
10.0
600.0
25.0
10.0
b
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 2,328.3
100.0
23.0
40.0+
7.0
20.0
10.0
5.0+
2.45
5.0+
2.25
0.2+
0.4
30.0
18.0
3,860.2+ 3,031.4
a: funds appropriated for FY2003 and FY2004, plus the Administration request for FY2005.
b: sums necessary.
+: amount shown plus sums necessary for subsequent years.
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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GSA disbursed all of these 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.
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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.
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P.L. 108-7 also included $15 million for one-time payments to certain states that
had 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 final omnibus
appropriations bill, H.R. 2673, signed into law on January 23, 2004 (P.L. 108-199),
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.
TheFor FY2005, the President’s budget request for FY2005 included $65 million for election
reform, of which $40 million was additional funding for requirements grants and $10
million was for EAC administrative expenses. The request also included $5 million for
protection and advocacy systemsprograms and $10 million for accessibility grants. The House
Transportation and Treasury Appropriations Subcommittee mark-up included an
additional $5 million for the EAC. The omnibus appropriations bill for FY2005, H.R.
4818 was signed into law on December 8, 2004 and included $14 million for the Election
Assistance Commission, of which $2.8 million was to be transferred to the National
Institute of Standards and Technology, and $15 million for disability voting access, with
$5 million of that amount to apply to protection and advocacy systems. Also included was
$200,000 for the student parent mock election program and $200,000 for the Help
America Vote College Program.
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 millionThe President’s budget request for FY2006 included $17.6 million for the EAC
“to develop voluntary standards and initiate an accreditation program for electronic voting
machines,” as well as $9.9 million for protection and advocacy programs and $5 million
for accessibility grants administered by HHS. The House appropriations bills include
$15.9 million for the EAC, of which $2.8 million is for NIST activities (H.R. 3058), and
the administration-requested amounts for HHS (H.R. 3010).
State Implementation of the Help America Vote Act
With the publication of state plans in the Federal Register on March 24, 2004,
states and
territories were eligible to receive $2.3 billion in federal requirements payments, following
following a 45-day 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
allocated until establishment of the EAC and publication of the state plans. The GSA is disbursing
the funds, as it did with Title I payments. As of August 2004, the GSA has distributed
$1.2 billion in EAC-approved requirements paymentsAs of June
2005, $2.2 billion in EAC-approved requirements payments had been distributed, with
$112 million remaining to be disbursed.