Contents

• Introduction
• Note on Terminology
• Overview of Major Provisions
• Requirements
• Grant Programs
• U.S. Election Assistance Commission (EAC)
• Ongoing Role in Election Administration Policy
• Proposals to Revisit HAVA or the EAC
• Proposals to Extend HAVA or the EAC
• Potential Considerations for Congress

Summary

The Help America Vote Act of 2002 (HAVA) was enacted in response to issues with the administration of the 2000 elections. The highest-profile issues in those elections were in Florida—where disputes about the vote count delayed the resolution of the presidential race for weeks—but post-election hearings and reports identified issues with various aspects of election administration across multiple states.

Congress's response to those findings, in HAVA, spanned a correspondingly wide range of elections topics. The act took three main approaches to the issues. First, it set requirements for the administration of federal elections. Some states and localities had adopted policies or technologies before the 2000 elections that may have helped prevent some of the issues encountered by other jurisdictions in 2000, and other policy proposals were offered in post-2000 hearings and reports. HAVA was designed, in part, to standardize use of some of those policies and technologies in federal elections. Title III of the act set new federal requirements for voting systems, provisional voting, voting information, statewide voter registration databases, voter identification, and the federal mail voter registration form created by the National Voter Registration Act of 1993.

Second, HAVA authorized the first major federal grant programs for elections. Complying with HAVA's Title III requirements involved significant financial investments for many states and localities. There were also other post-2000 changes to election processes—not addressed by the HAVA requirements—that states and localities wanted or needed to make. Congress authorized a pair of general grant programs in HAVA to help states meet the act's Title III requirements and make certain general improvements to election administration. HAVA also authorized more specialized grant programs to facilitate or incentivize action on voting technology, disability access, youth voter participation, and poll worker recruitment.

Third, HAVA provided for creation of the election administration-dedicated U.S. Election Assistance Commission (EAC). Federal agency support for the general administration of elections was provided in 2000 by a small office at the Federal Election Commission known as the Office of Election Administration (OEA). The scope of the issues with the conduct of the 2000 elections prompted calls for an expanded federal agency role in elections. Some proposed assigning any new responsibilities to the existing OEA, while others wanted to create a new agency that would be fully dedicated to election administration. There was also debate about whether a new elections agency should have the authority to issue regulations. Congress struck a balance in HAVA by providing for a new agency, the EAC, but positioning it as a support agency.

HAVA and the agency it created have continued to play a central role in congressional engagement with election administration issues since the act's enactment in 2002. For example, Congress responded to foreign efforts to interfere in the 2016 elections and the emergence of the COVID-19 pandemic in the 2020 election cycle by providing new funding for a HAVA grant program administered by the EAC. Members have also introduced legislation to revisit HAVA or the EAC or to extend them to address new aspects of election administration.

The ongoing role of HAVA in federal elections policymaking is partly a result of two features of the act. HAVA was (1) more wide-ranging in the topics it aimed to address than elections measures Congress had tended to approve in the recent past, with (2) a greater emphasis on federal assistance for states and localities. Other recent federal election laws had tended primarily to set requirements and to focus on particular aspects of elections or access to the electoral process for particular groups of voters. HAVA, by contrast, spans multiple issues and voter groups and pairs its requirements with grant programs and the assistance-oriented EAC. Those features have made HAVA and the EAC common choices of vehicles for efforts to extend federal requirements to new aspects of election administration or provide for new federal support for elections.

Ongoing congressional engagement with HAVA can also be traced, in part, to interest in revisiting the act. There was broad agreement during the HAVA debate that Congress should consider a legislative response to the issues with the conduct of the 2000 elections but disagreement about exactly what that legislative response should look like. Compromises struck in HAVA did not necessarily resolve the underlying disagreements, and new developments since 2002—both due to HAVA and independently of it—have changed the election administration landscape. As a result, some Members have proposed revisiting HAVA's treatment of particular elections issues or the structure of the act or the agency it created.

Introduction

The Help America Vote Act of 2002 (HAVA; P.L. 107-252; 52 U.S.C. §§20901-21145) was enacted in response to issues with the administration of the 2000 elections. The highest-profile issues in those elections were in Florida—where disputes about the vote count delayed the resolution of the presidential race for weeks—but post-election hearings and reports identified issues with various aspects of election administration across multiple states.¹

Congress's response to those findings, in HAVA, spanned a correspondingly wide range of elections topics, from voting systems to voter identification to the accessibility of the electoral process to individuals with disabilities. HAVA took three main approaches to the issues: (1) setting requirements for the administration of federal elections, (2) authorizing the first major federal grant programs for election administration, and (3) providing for creation of the election administration-dedicated U.S. Election Assistance Commission (EAC).

HAVA and the agency it created have continued to play a central role in congressional engagement with election administration issues since the act's enactment in 2002. For example, Congress responded to foreign efforts to interfere in the 2016 elections and the emergence of the COVID-19 pandemic in the 2020 election cycle by providing new funding for a HAVA grant program administered by the EAC.² Members have also introduced legislation to revisit HAVA or the EAC or to extend them to address new aspects of election administration.

This report provides an overview of HAVA and the ongoing role the act has played in policy discussions about election administration. It starts by describing major provisions of HAVA and then summarizes proposals to revisit or extend the act or the agency it created. The report closes by briefly introducing some considerations that might be relevant to discussions of any future role for HAVA in federal policymaking on election administration.

Note on Terminology

HAVA generally defines "state" as including the 50 states, the District of Columbia (DC), American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands.³ Congress has considered proposals to expand that general definition to include the Commonwealth of the Northern Mariana Islands (CNMI), but none of those proposals has been enacted as of this writing.

The Protection and Advocacy for Voting Access (PAVA) Program Inclusion Act (P.L. 117-182), which amended HAVA to extend eligibility for one of its grant programs to the protection and advocacy (P&A) systems serving CNMI and Native Americans in the Four Corners region of the country (American Indian consortium), and the Confirmation of Congressional Observer Access (COCOA) Act of 2024 (P.L. 118-106), which amended the act to address Congress's authority to send designees to observe states' federal election processes, define "state" for those purposes as including CNMI. Some appropriations acts have also included language extending eligibility for certain other HAVA funding to CNMI.⁴

Except in the context of the PAVA Program Inclusion Act, the COCOA Act, and relevant appropriations acts, this report typically uses HAVA's general definition of "state." Where the narrower meaning of the term is intended, the report uses the phrase "the 50 states."

Overview of Major Provisions

A defining image of the 2000 elections was a picture of a member of a Florida county canvassing board inspecting a punch card ballot with a magnifying glass.⁵ Florida's closely contested race would decide the 2000 presidential election. One of the issues highlighted by litigation and recounts in the state was the challenge of interpreting incompletely punched "hanging" and "dimpled" chads left by the punch card voting systems used in some Florida counties.⁶

Hearings and reporting on the 2000 elections emphasized, however, that the election administration issues that year were not limited to Florida or to punch card voting systems.⁷ Those investigations identified other issues with voting systems. The lever voting machines used in some jurisdictions in 2000 could jam, for example, and did not produce paper trails that could be used to reconstruct votes cast on a jammed machine.⁸ Confusing ballot formats contributed to high rates of "overvoting"—or making more selections for a given contest than permitted—in some counties.⁹

The investigations also revealed issues with other aspects of the administration of the 2000 elections, beyond voting systems. For example, eligible voters who had been erroneously removed from the voter registration rolls were turned away from the polls in some states, and some polling places were moved or closed early without notice.¹⁰ Witnesses representing military and overseas citizens, individuals with disabilities, and older individuals in congressional hearings reported distinct obstacles to registration and voting by members of those groups.¹¹

Congress took three main approaches, in HAVA, to responding to issues highlighted by the 2000 elections: (1) setting requirements for the administration of federal elections, (2) authorizing elections grant programs, and (3) expanding agency support for election administration through creation of the EAC.¹²

Requirements

Some states and localities had adopted policies or technologies before the 2000 elections that may have helped prevent issues encountered by other jurisdictions in 2000. For example, voting systems that alerted voters who attempted to make multiple selections for a single office reportedly reduced overvoting in some cases, and statewide voter registration databases may have helped election officials in some states maintain more accurate voter rolls.¹³ Provisional voting policies, which enabled voters whose eligibility was challenged at the polls to cast provisional ballots, may have helped mitigate some of the effects of voter registration list maintenance errors.¹⁴

Other policy proposals were offered in post-2000 hearings and reports. For example, technology experts suggested setting national standards for voting system auditability, and the U.S. Department of Defense's (DOD's) Federal Voting Assistance Program (FVAP), among others, proposed changes to military and overseas voting and registration processes.¹⁵

HAVA was designed, in part, to standardize use of some of those policies and technologies in federal elections. Title VII of the act amended existing federal law to incorporate some of the proposed changes to military and overseas voting and registration, and Title III set requirements for other aspects of the conduct of federal elections. The Title III requirements, as amended, are briefly summarized below. For details of those requirements and the Title VII provisions, respectively, see Table 1 and Appendix B.¹⁶

• Voting systems. Require each state to set uniform standards for what counts as a vote on each type of voting system it uses, and require voting systems to offer voters the opportunity to check and correct their ballots; notify voters about overvoting; produce a manually auditable permanent paper record; provide for accessibility for individuals with disabilities; satisfy alternative language requirements of the Voting Rights Act of 1965 (VRA; P.L. 89-110), as amended; and meet specified error rate standards.
• Provisional voting. Require election officials to permit certain voters, including voters whose names do not appear on the voter rolls, to cast provisional ballots; count provisional ballots cast by voters who are found to be eligible under state law to vote; and provide voters with specified options for checking the status of their provisional ballots.
• Voting information. Require election officials to post the following information at the polls: a sample ballot, the date of the election, polling place hours, instructions for voting and for complying with HAVA's requirements for mail registrants and first-time voters, and general information about voting rights and prohibitions on fraud and misrepresentation.
• Statewide voter registration databases. Require states to implement centralized, computerized statewide voter registration lists and follow specified procedures for maintaining them.¹⁷
• Voter identification. Require certain first-time voters who register by mail to provide one of a specified list of types of identification in order to cast a regular ballot.
• Federal mail voter registration form. Require questions about citizenship and age, a statement about the new questions, and a statement about HAVA's voter ID requirement to be added to the federal mail voter registration form established by the National Voter Registration Act of 1993 (NVRA; P.L. 103-31; 52 U.S.C. §§20501-20511), and require election officials to offer voters who fail to answer the citizenship question an opportunity to complete the form.
• Congressional election observers. Require states to provide congressional election observers access to federal election processes—including to areas where ballots are cast, processed, scanned, tabulated, canvassed, recounted, audited, or certified—with specified limitations on observers' activities and conditions for their removal and replacement.¹⁸

HAVA left decisions about how to implement—and, to a certain extent, enforce—its Title III requirements to the states. The act directed the EAC to issue voluntary guidance for implementing the Title III requirements but left states discretion over exactly how to meet them.¹⁹ It assigned federal enforcement of the requirements to the U.S. Department of Justice (DOJ) but routed action by individual voters on violations through state-based administrative complaint procedures²⁰ rather than an explicit private right of action.²¹

Grant Programs

Complying with HAVA's Title III requirements involved significant financial investments for many states and localities. There were also other post-2000 changes to election processes—not addressed by the HAVA requirements—that states and localities wanted or needed to make. Congress accounted for both of those circumstances, in HAVA, with a pair of general grant programs that were designed to help states meet HAVA's Title III requirements and make certain general improvements to election administration.

HAVA also authorized grant programs to facilitate or incentivize action on specific issues or policy proposals, such as replacing lever and punch card voting systems. Those more specialized grant programs included programs related to voting technology, disability access, youth voter participation, and poll worker recruitment.

Each of the grant programs authorized by HAVA is summarized below. Information about the funding Congress has authorized and appropriated for each program as of this writing is available in Table 2. For more on federal elections grant programs in general, see CRS Report R46646, Election Administration: Federal Grant Programs for States and Localities, by Karen L. Shanton.

• Requirements payments program. Grants to states for meeting requirements for the administration of federal elections. Administered by the EAC.²² States are required by HAVA to provide a match for funding they receive under this program and a state plan for use of the funds.²³ Funding was initially authorized for this grant program primarily for helping states comply with HAVA's Title III requirements.²⁴ The Military and Overseas Voter Empowerment (MOVE) Act of 2009 amended HAVA to authorize additional funding for the program to help states meet new requirements for military and overseas voting and registration established by the MOVE Act.²⁵
• General improvements grant program. Grants to states for making certain general improvements to election administration.²⁶ Administered by the U.S. General Services Administration (GSA) and the EAC.²⁷
• Lever and punch card voting system replacement grant program. Grants to states that used lever or punch card voting systems in the November 2000 election for replacing those systems. Administered by GSA and the EAC. States that accepted funding under this grant program were required to either replace all of their lever and punch card voting systems by a deadline specified by HAVA or repay a portion of the funds they received.²⁸
• Voting technology improvements research grant program. Grants for researching and developing improvements to the quality, reliability, accuracy, accessibility, affordability, and security of election systems. Administered by the EAC, with support from the National Institute of Standards and Technology (NIST).²⁹
• Voting technology pilot program grant program. Grants for conducting pilot programs to test new voting technologies and implement them on a trial basis. Administered by the EAC, with support from NIST.
• Polling place accessibility grant program. Grants to states and localities for improving the accessibility of polling places and sharing information about polling place accessibility. Administered by the U.S. Department of Health and Human Services (HHS).³⁰
• Protection and advocacy (P&A) system grant program. Grants to P&A systems—state-level systems charged with empowering and advocating for individuals with disabilities—for conducting activities related to electoral access for individuals with disabilities. Administered by HHS.³¹
• Mock elections grant program. Grants for conducting voter education activities for students and their parents. Administered by the EAC.
• Help America Vote College Program. Grant-making, among other program activities, for encouraging students at institutions of higher education to serve as poll workers and election officials to use their services. Administered by the EAC. HAVA also authorized creation of a Help America Vote Foundation to perform a similar function for secondary school students, although the act's description of the foundation does not explicitly list grant-making among its authorized activities.³²

To help ensure that grant funds are used as intended, HAVA provides for funding audits and examinations.³³ It includes provisions for audits by the agencies that administer its grant programs, as well as both special audits of any HAVA funding upon a vote of the EAC commissioners and regular audits of funding provided under the requirements payments program.³⁴

U.S. Election Assistance Commission (EAC)

Federal agency support for the general administration of elections was provided in 2000 by a small office at the Federal Election Commission (FEC) known as the Office of Election Administration (OEA).³⁵ The scope of the issues with the conduct of the 2000 elections prompted calls for an expanded federal agency role in election administration.

Some proposed assigning any new responsibilities to the existing OEA, while others wanted to create a new agency that would be fully dedicated to election administration.³⁶ There was also debate among Members about whether a new elections agency should have the authority to issue regulations.³⁷

Congress struck a balance in HAVA by providing for a new agency, the EAC, but positioning it as a support agency.³⁸ The EAC's rulemaking authority is explicitly limited by the act to regulations about two responsibilities it inherited from the FEC—maintaining the federal mail voter registration form established by the NVRA and reporting to Congress about the impact of the NVRA on the administration of federal elections³⁹—and its other duties are assistance-oriented. Those duties include

• Administering grant programs. The EAC has been charged with administering most of the grant programs authorized by HAVA, as well as other grant funding Congress has provided for improving the collection of election data.⁴⁰ The agency's grants administration responsibilities have included distributing funds to grantees, responding to inquiries about use of the funds, collecting and reconciling required grant reporting, negotiating indirect cost rates, and auditing grant spending.⁴¹
• Overseeing the voluntary federal voting system testing and certification program. The FEC issued voluntary federal guidelines for voting systems in 1990 and 2002, and the National Association of State Election Directors (NASED) developed a program to test and qualify voting systems to the FEC guidelines.⁴² HAVA reassigned both of those sets of tasks to the EAC. The EAC, with assistance from NIST and the EAC advisory boards described below, is charged with developing federal Voluntary Voting System Guidelines (VVSG) and overseeing a program to test and certify voting systems for conformance to them.⁴³ The agency's commissioners have adopted three versions of the guidelines as of this writing: VVSG 1.0 in 2005, VVSG 1.1 in 2015, and VVSG 2.0 in 2021.⁴⁴
• Issuing voluntary guidance for implementing HAVA's Title III requirements. HAVA left discretion over how to meet its Title III requirements to the states but directed the EAC to offer voluntary guidance about implementation. It charged the agency with issuing guidance for implementing HAVA's voting systems standards by January 1, 2004, and the other Title III requirements by October 1, 2003.⁴⁵
• Conducting research and sharing best practices. HAVA grants the EAC broad authority to conduct research and issue best practices on elections topics.⁴⁶ It also directed the agency to produce studies on the following topics: facilitating military and overseas voting (in consultation with DOD); human factor research (in consultation with NIST); mail registration and use of Social Security information (in consultation with the U.S. Social Security Administration [SSA]); electronic voting and the electoral process; and free absentee ballot postage (in consultation with the U.S. Postal Service [USPS]).⁴⁷
• Establishing the Help America Vote College Program. HAVA charged the EAC with establishing a program to encourage students at institutions of higher education to serve as poll workers and election officials to use their services. In addition to the grant-making described in the "Grant Programs" section of this report, the agency is authorized to conduct activities like developing materials and sponsoring seminars and workshops as part of the program.⁴⁸

The structure of the EAC also reflects its positioning as a support agency. The EAC's four-member commission, Office of Inspector General, and professional staff were paired by HAVA with three advisory boards (described below) that are designed to play a central role in the direction and functioning of the agency. The memberships of those advisory boards include state and local election officials and a range of other elections stakeholders.

• Board of Advisors. 35 members representing a range of election administration stakeholders,⁴⁹ including state and local officials, federal agencies, science and technology experts, and voters.⁵⁰ The Board of Advisors is responsible for reviewing voluntary guidance and draft VVSG before they are presented to the EAC's commissioners for a vote on adoption; appointing a search committee in the event of a vacancy for executive director of the agency; and consulting on the EAC's research efforts, program goals, and long-term planning and on NIST's monitoring and review of laboratories accredited by the EAC to test voting systems to the VVSG.⁵¹
• Standards Board. 110 members, with one state official and one local official from each of the 50 states, DC, American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands and a nine-member Executive Board chosen by the Standards Board from among its members.⁵² Like the Board of Advisors, the Standards Board or its Executive Board is responsible for reviewing voluntary guidance and draft VVSG before they are presented to the EAC's commissioners for a vote on adoption; appointing a search committee in the event of a vacancy for executive director of the agency; and consulting on the EAC's research efforts, program goals, and long-term planning and on NIST's monitoring and review of laboratories accredited by the EAC to test voting systems to the VVSG.⁵³
• Technical Guidelines Development Committee (TGDC). 15 members, with the director of NIST as chair and 14 other members representing a range of election administration stakeholders, including state and local officials, individuals with disabilities, and science and technology experts.⁵⁴ The TGDC is responsible for assisting the executive director of the EAC with developing draft VVSG for consideration by the agency's commissioners.⁵⁵

In 2021, the EAC used its authority to establish a fourth advisory board, the Local Leadership Council, to help build its relationships with local election officials and offer them more opportunities for input into the agency's work. The Local Leadership Council consists of two local election officials from each of the 50 states who are appointed by the EAC and, if applicable, serve or have served in a leadership role in a professional association for election officials in their state.⁵⁶

Ongoing Role in Election Administration Policy

No new federal election laws as multifaceted as HAVA have been enacted since 2002, as of this writing. Congress has also made only relatively minor changes to HAVA itself, extending the deadline for replacing voting systems under the act's lever and punch card voting system replacement grant program, authorizing new funding for the requirements payments program, revising provisions for public notice of states' plans for use of requirements payments, eliminating certain grant program audits, extending eligibility for the P&A system grant program to the P&A systems serving CNMI and the American Indian consortium, and addressing Congress's authority to send designees to observe states' federal election processes.⁵⁷

New developments and continuing concerns have combined, however, to ensure ongoing congressional interest in election administration. The onset of the COVID-19 pandemic introduced novel complications for administration of elections in the 2020 election cycle, for example, and foreign efforts to interfere in the 2016 elections drew attention to the challenges of securing election systems. There are also long-standing efforts among Members to ensure that eligible voters have access to the ballot and ineligible voters do not.

HAVA and the agency it created have played a role in much of that congressional activity. The EAC-administered HAVA funds Congress provided in response to foreign efforts to interfere in the 2016 elections and the onset of the COVID-19 pandemic in the 2020 cycle offer some notable recent examples. Members have also introduced proposals to revisit HAVA or the EAC or to extend them to address new aspects of election administration.

Proposals to Revisit HAVA or the EAC

There was broad agreement among Members, during the HAVA debate, that Congress should consider a legislative response to the issues with the administration of the 2000 elections.⁵⁸ Members disagreed, however, about exactly what that legislative response should look like. The HAVA debate highlighted disagreements about which issues should be addressed in election administration legislation and how they should be addressed.⁵⁹

The enacted legislation reflects compromises on some of those disagreements. Some of HAVA's provisions reflect compromises about the treatment of particular elections topics. For example, the requirement that certain first-time voters who register by mail provide identification in order to cast a regular ballot was a compromise between Members who preferred a more expansive voter ID requirement and Members who opposed requiring any voters to show ID.⁶⁰

Another compromise is built into the structure of the act. Some Members favored limiting federal involvement in the response to the 2000 elections to voluntary guidelines and grant programs, while others wanted a regulatory agency and binding national standards.⁶¹ As noted in the "Overview of Major Provisions" section of this report, HAVA ended up setting some standards in its Title III but leaving many decisions about how to implement and enforce them to the states. It created a new federal agency but strictly limited its regulatory authority and gave states and localities input into its work.

The compromises struck in HAVA did not necessarily resolve the underlying disagreements that prompted them, however. New developments since 2002—both due to HAVA and independently of it—have also changed the election administration landscape.

As a result, some Members have proposed revisiting the act or the agency it created. Some of those post-HAVA proposals would revise the act's treatment of particular elections topics, while others would revisit the structure of HAVA or the EAC. Examples of proposals to revise HAVA's treatment of particular elections topics include bills that would

• Expand or limit voter identification requirements. The voter ID debate is often characterized as a debate about how to balance ensuring access to the ballot for eligible voters against preventing access by ineligible voters. Proponents of ID laws argue that they help guard against voter fraud, while opponents say that they can disenfranchise eligible voters. Disagreements about how to prioritize those two considerations persisted after HAVA was enacted, and there have been proposals both to expand the act's ID requirement and to set federal limits on ID laws. For example, Members have introduced legislation to require voters to show photo ID and documentary proof of citizenship, as well as proposals to require states to accept student ID cards as voter ID or submit proposed ID or documentation laws for federal preclearance.⁶²
• Establish standards for matching voter registration data. HAVA directs certain officials to enter into database-matching agreements for purposes of verifying voter registration data.⁶³ As election law professor Daniel P. Tokaji has argued, however, the wording of the relevant provisions leaves open questions about exactly how voter registration data matching should work and what the consequences of a failed match should be.⁶⁴ Those questions could have significant practical implications—Tokaji notes that different answers could affect who appears on the voter rolls and which ballots are counted—and some have proposed offering more definitive guidance. For example, Members have introduced bills to prohibit rejecting voter registration applications solely on the basis of a failed match and to set (or direct a federal agency to set) standards for matching registration data.⁶⁵
• Set specifics for the manually auditable paper records voting systems produce. Voting systems used in federal elections are required, under HAVA, to produce manually auditable permanent paper records.⁶⁶ As those provisions have been interpreted and implemented, they do not specifically require production of individual paper records that voters can verify before casting their ballots.⁶⁷ Technology experts raised concerns during the HAVA debate about voting machines that do not produce voter-verifiable paper records, however, and subsequent events and reporting have drawn further attention to the machines' potential for technical faults and security vulnerabilities.⁶⁸ Research since 2002 has also produced new methodologies for auditing election outcomes, such as risk-limiting audits.⁶⁹ Some have responded to such developments by proposing more specific versions of HAVA's audit and paper record provisions. For example, Members have introduced legislation to require voting systems to produce voter-verifiable paper records and to require, facilitate, or incentivize use of certain types of post-election audits.⁷⁰

Examples of proposals to revisit the structure of HAVA or the EAC include bills that would

• Terminate the EAC. The National Association of Secretaries of State (NASS) adopted in 2005—and renewed in 2010 and 2015—a resolution it described as aimed at preventing the EAC from evolving into a regulatory agency.⁷¹ That resolution, which asked Congress not to reauthorize or fund the agency, was one of the rationales cited for proposals to terminate the EAC in the 112^th through 115^th Congresses.⁷²
• Reinforce or expand the EAC's authority: Members have also introduced bills that would take the opposite of the above approach, reinforcing or expanding the EAC's role. Some of those proposals would designate the agency as the federal lead on election administration, giving it primary federal jurisdiction over issues related to the administration of federal elections where not otherwise specified in law and prohibiting other federal entities from making payments to states for purposes of administering federal elections.⁷³ Other proposals would expand the agency's regulatory authority. HAVA's explicit restriction on EAC rulemaking means that the agency has limited authority beyond voluntary guidance to clarify ambiguities in the act, such as the open questions about voter registration data matching described above, or to fill in details of future federal elections policies that Congress might not want to enshrine in statute. As a result, some have proposed lifting the restriction in certain contexts or repealing it entirely.⁷⁴
• Revisit HAVA's enforcement mechanisms. The limit on EAC rulemaking has also been cited by some as a reason to revisit HAVA's enforcement mechanisms.⁷⁵ Without the option of agency regulations—and barring new federal legislation—the primary federal forum for resolving ambiguities in HAVA is the courts.⁷⁶ HAVA expressly authorizes DOJ to bring civil action under certain provisions of the law, and some have proposed also explicitly authorizing individuals to bring suit. For example, Members have introduced bills to add an explicit private right of action for existing HAVA requirements or for new requirements that would be established by amendments to the act.⁷⁷
• Address EAC operations. HAVA authorized up to $10 million in operational funding for the EAC for each of FY2003 through FY2005. Congress has continued to fund EAC operations in subsequent fiscal years, and bills have been introduced to explicitly reauthorize—and raise or remove the limit on—the agency's funding.⁷⁸ Those bills have also tended to propose changes to other aspects of EAC operations, such as budget requests, commissioner compensation, advisory body support or membership, contracting authority, and staffing levels at the EAC or its Office of Inspector General.⁷⁹

Proposals to Extend HAVA or the EAC

HAVA marked a departure from previous federal elections statutes in at least two ways: (1) it was more wide-ranging in the topics it aimed to address than elections measures Congress had tended to approve in the recent past, with (2) a greater emphasis on federal assistance for states and localities. Other recent federal election laws had tended primarily to set requirements and to focus on particular aspects of election administration or the accessibility of the electoral process to particular groups of voters.⁸⁰ HAVA, by contrast, spans multiple issues and voter groups—from voter registration to voting information and voters with disabilities to young voters—and pairs its requirements with grant programs and the assistance-oriented EAC.

Those two features have made HAVA and the agency it created common choices of vehicles for congressional efforts to engage with elections issues. First, the broad scope of the act has made it a common choice of vehicle for proposals to set requirements for aspects of election administration that are not addressed by other, more specialized federal election laws. New HAVA requirements have been proposed in response to developments in particular election cycles. Following the onset of the COVID-19 pandemic in the 2020 cycle, for example, some Members proposed amending HAVA to require states and localities to offer no-excuse absentee voting and registration during emergencies, to require election officials to conduct public education campaigns about election changes due to emergencies, or to require states to conduct their 2020 elections entirely by mail.⁸¹

Members have also proposed new HAVA requirements as part of broader efforts to advance general objectives for election administration. For example, proposals to amend HAVA to set federal standards for the number of election resources states provide at polling places and for the way states conduct mail voting and report election results have been presented as ways to increase access to the ballot for eligible voters and to secure the integrity of the electoral process, respectively.⁸²

Second, HAVA's emphasis on assistance has made it and the EAC common vehicles for efforts to provide new federal support for election administration, as well as efforts to condition access to federal funding on use of specified elections policies. Members have proposed authorizing HAVA or EAC grant programs to help meet new federal requirements, such as a proposed requirement to implement automatic voter registration; to facilitate or incentivize voluntary policies, such as use of electronic poll books; and to provide states with ongoing financial support for election administration.⁸³ They have also proposed directing the EAC to offer other, nonfinancial support for election administration, such as research into barriers to voting by individuals who are homeless and voluntary guidance about the use and risks of artificial intelligence in election administration.⁸⁴

Congress has appropriated funding for existing EAC-administered HAVA grant programs to help address new election administration challenges. For example, it provided funding for HAVA's general improvements grant program in response to foreign efforts to interfere in the 2016 elections and the onset of the COVID-19 pandemic in the 2020 election cycle.⁸⁵

Existing EAC and HAVA grant programs have also been invoked in proposals to condition state or local access to federal funding on use of certain elections policies. Members have proposed withholding EAC or HAVA funds from states or localities that do not adopt specified policies, such as using nonpartisan independent commissions for state legislative redistricting, extending the existing prohibition on noncitizen voting in federal elections to state and local contests, or conducting post-election audits of voting systems.⁸⁶

Potential Considerations for Congress

As noted in the "Ongoing Role in Election Administration Policy" section of this report, no new federal election laws as multifaceted as HAVA have been enacted as of this writing. As that might suggest, Congress has generally tended to defer to state and local officials on policy responses to election administration issues. The enactment of HAVA and other federal election laws and the ongoing introduction of new election administration bills demonstrate, however, that Members sometimes also see a role in elections policy for the federal government.

HAVA and the EAC offer potential vehicles for any future federal involvement in election administration policymaking. HAVA is perhaps the closest thing in federal law to a general elections statute, and the EAC has subject matter expertise in election administration, existing relationships with state and local election officials, and experience administering elections grant programs.

There are also other possible vehicles, however, as well as various ways Congress might structure federal involvement in election administration through HAVA or the EAC. The following issues might be of interest to Members who are weighing whether or how to engage with election administration policy:

• Prioritization of considerations. The HAVA debate was framed by many of its participants as about making it "easier to vote and harder to cheat," or ensuring access to the ballot for eligible voters on one hand and preventing fraud in elections on the other.⁸⁷ Foreign efforts to interfere in the 2016 elections highlighted another possible consideration for elections policymaking—security—and state and local experiences suggest others. For example, state and local officials factored considerations like accessibility, ease of administration, and cost-effectiveness into their post-HAVA decisions about voting systems. As debates over issues like voter ID requirements illustrate, different choices about how to prioritize such considerations can produce different policy preferences. An initial step in elections policymaking might, therefore, be to determine which considerations to factor into policy decisions and how to prioritize them.
• Choice of agency. As the only federal agency dedicated to helping improve the general administration of elections, the EAC might often be a logical choice for new federal agency work on election administration. However, some features of the agency, such as its limited rulemaking authority and current size and funding level, could introduce challenges for certain types of work. Other agencies might also have or acquire expertise that is particularly relevant to certain aspects of election administration. HHS has subject matter expertise in disability access, for example, and NIST has subject matter expertise in standards and technology. The U.S. Department of Homeland Security (DHS) also took on new election security responsibilities following its designation of election systems as critical infrastructure in January 2017.⁸⁸ Congress might choose to delegate new elections tasks to the EAC—either with or without changing some of its features—or to assign them to other agencies instead of or in conjunction with the EAC.
• Choice of legislative approach. Like the EAC, HAVA might often be a logical choice of vehicle for congressional engagement with election administration policy. Also like the EAC, it might have some characteristics that are less logical fits for certain purposes. Members have sometimes chosen to address such characteristics by proposing amendments to HAVA or, in the case of grant programs in particular, including funding conditions in appropriations language.⁸⁹ Members might also choose to develop new legislation with characteristics that are better suited to their purposes or to amend existing laws others than HAVA. For example, some election security and youth voter participation bills would have amended the Homeland Security Act of 2002 (HSA; P.L. 107-296) and the Higher Education Act of 1965 (HEA; P.L. 89-329), respectively.⁹⁰
• Balance of statute and regulation. As noted in the "Proposals to Revisit HAVA or the EAC" section of this report, the wording of HAVA's voter registration data-matching provisions left some open questions about how data matching should work. Legislative proposals to provide more definitive guidance illustrate two of the options available for federal policymaking: (1) specifying policy details in statute, and (2) delegating details to a federal agency. Some of those bills would amend the text of HAVA's data-matching provisions to add more specifics, for example, while others would direct a federal agency to set data-matching standards. Either of those two options—or a combination of both—might be a better fit in certain circumstances. For example, specifying policy details in statute might be a better fit for cases in which Congress knows exactly how it wants a policy to be implemented, while delegating details to an agency might better fit cases in which new developments are likely to change the policy landscape or more information or expertise is required to determine how best to implement the policy.
• Balance of federal action and state or local action. The structure of HAVA highlights a third option for federal policymaking, in addition to specifying policy details in statute and delegating them to a federal agency: deferring on some policy details to states and localities. HAVA set requirements for the administration of federal elections, for example, but left states significant discretion over exactly how to implement them. It established a federal elections agency but limited its authority to set regulations for states and localities and provided for state and local input into its work. Members who are interested in engaging with elections issues might similarly consider how to distribute decisionmaking among federal, state, and local officials. States and localities have primary responsibility for administering elections in the United States, so state and local officials might often be particularly well positioned to identify the best policy options for their jurisdictions. On the other hand, deferring to states and localities on policy details might contribute, in some cases, to variations in the effectiveness of a policy across states or policy choices that are at odds with congressional objectives.

Appendix A. Major Provisions of HAVA by Issue Area

Appendix B. HAVA Amendments to Military and Overseas Voting Processes

Appendix C. Timeline of Congressional Deliberations on Election Administration

Footnotes