The EAC Need Not Continue Violating Federal Law
by John Gideon and Ellen Theisen. January 5, 2009
There can be little doubt that, of the issues springing from elections held since President Bush signed the Help America Vote Act of 2002 (HAVA), two are among the most significant. Those issues are failures of voting systems to meet the HAVA mandates for accuracy and accessibility and the confusion over the proper use of provisional ballots.
The states should have been able to look to the federal Election Assistance Commission (EAC) for guidance on both issues, but the EAC has failed to give the necessary Assistance, thus failing to fulfill duties assigned to the agency by federal law.
Now the EAC is proposing to extend its dereliction of duty for another two years. The result will be the publication of these important guidelines a full eight years after HAVA was enacted. The delay is inexcusable and intolerable, and the cost to American elections, on many fronts, is nearly incalculable.
HAVA requires the EAC to provide such guidance to the states. Section 311 states:
(a) In General.--To assist States in meeting the requirements of subtitle A, the Commission shall adopt voluntary guidance consistent with such requirements in accordance with the procedures described in section 312.
(b) Deadlines.--The Commission shall adopt the recommendations under this section not later than—
(1) in the case of the recommendations with respect to section 301, January 1, 2004; [voting system requirements]
(2) in the case of the recommendations with respect to section 302, October 1, 2003; [provisional voting] and
(3) in the case of the recommendations with respect to section 303, October 1, 2003. [computerized voter registration lists]
(c) Quadrennial Update.--The Commission shall review and update recommendations adopted with respect to section 301 no less frequently than once every 4 years.
And Section 312 goes on to mandate:
In a recent email to the EAC spokeswoman, Jeannie Layson, we asked about the guidance the EAC was required to provide several years ago. In the email we asked:
The adoption of the voluntary guidance under this subtitle shall be carried out by the Commission in a manner that provides for each of the following:
(1) Publication of notice of the proposed recommendations in the Federal Register.
(2) An opportunity for public comment on the proposed recommendations.
(3) An opportunity for a public hearing on the record.
(4) Publication of the final recommendations in the Federal Register.
Ms. Layson responded that, in fact, the EAC had not issued any voluntary guidance on either Section 301 (voting systems) or Section 302 (provisional ballots). She correctly pointed to several advisories that had been published by the EAC, however.
I have a question about HAVA Section 311 and the guidance requirements in that Section. I note that the EAC issued "Voluntary Guidance on Statewide Voter Registration Lists" in 2005. I have not been able to find the same type of report for voting systems (Sec. 301) or provisional voting (Sec. 302). Can you assist me with that?
Also I note that in the draft "Strategic Plan" there is mention of HAVA Section III. Goal 3, Objective 3 is, in part, to provide guidance to states concerning the proper implementation of the HAVA Title III requirements. Isn't this objective actually the requirement from Sec. 311 of HAVA?
She wrote in her response:
It is troubling that a federal commission assigned by Congress to give guidance to states concerning the use of voting systems and provisional ballots has neglected that vital assignment. Not only has the EAC failed to meet the mandated deadlines of 1 January 2004 (Section 301) and 1 January 2003 (Section 302), but the Commission has also failed to meet the requirements for quadrennial updates of the guidance.
Hello Mr. Gideon,
Per your question, we have not issued guidance on those topics, but we have issued several advisories, which are available here. As you noted, the EAC's draft strategic plan states that we will issue all of the Title III guidance by Oct. 2010. Go here to view the draft strategic plan. And don't forget that we are seeking public comment on the plan, so if you have suggestions/criticisms/etc. please submit them. As soon as the public comment notice is published in the Federal Register notice, we'll provide instructions and the dates to submit comments. Please let me know if you need further assistance.
In its “Strategic Plan”, the EAC claims to be committed to “Timely performance of its duties”. Clearly the EAC has failed to meet this commitment.
By ignoring its mandate to provide guidance on provisional ballot usage, the EAC has allowed some states and local jurisdictions to misuse a system that was supposed to allow more voters to vote and have their votes counted. Instead we have heard many reports of election officials not even looking at provisional ballots because they decided that “counting the provisional ballots would not result in any changes in any races.” Clearly, the states have needed guidance, yet the EAC has remained silent.
By its negligence, the EAC has allowed private voting system vendors – with an undisputed conflict of interest – to become the de facto authorities on determining whether their own equipment is HAVA compliant. As a result, the states have poured billions of taxpayer dollars into inaccessible, unreliable, inaccurate equipment in a misguided attempt to avoid violating federal law. Voters have paid for equipment that has been shown to lose their votes or count their votes inaccurately. Voters with disabilities have paid for equipment on which they cannot vote independently and privately.
For example, many jurisdictions use ES&S iVotronic Direct Recording Electronic voting machines to meet the accessibility requirement of HAVA. Yet when Hawaii was in the process of selecting a voting system to be used by the state, the evaluation team devalued the ES&S iVotronic for its failure to provide accessibility to people with disabilities.
Judy Paik, one member of Hawaii's voting system evaluation team, wrote in her report:
As California’s Top-to-Bottom-Review of the state's electronic voting systems and other reports show, equipment made by the other vendors also falls short of meeting HAVA’s accessibility requirement.
Election Systems and Software’s iVotronic DRE has limited accessibility for voters who have dexterity, low vision or cognitive impairments. The audio ballot output shuts down the visual ballot which ES&S claims is to “ensure total privacy for voters with low vision.” Many voters with low vision do in fact benefit from both a visual and audio ballot. And voters with cognitive impairments also benefit from having both a simultaneous visual and audio ballot for more than one sensory input mode.
The controls on the iVotronic are not accessible for someone who has a physical impairment that limits their dexterity to manipulate or press buttons and touch a small target area on the screen. No attachments are available to allow such voters to use a closed fist, palm of the hand, elbow or even a foot to operate the iVotronic to cast their ballot.
During these recent years of conflict over voting systems and how they are tested, certified, and used and whether they actually meet the voluntary voting system standards and the requirements mandated by HAVA, no guidance has been provided by the one agency that is supposed to provide that guidance. Instead, by ignoring Section 311 and 312 of HAVA, the EAC has been silent while the voting machine vendors sold their wares as being compliant with HAVA – a claim that report after report shows to be untrue.
Now the Commissioners have decided that they need to comply with HAVA, so they have added an “Objective” into their “Strategic Plan” for 2009 to 2014, and the stated goal is to have some type of guidance to the states by 1 Oct. 2010 – seven years after the states needed that guidance. By then – as it is now – most of the HAVA money will have been spent on systems that do not comply with HAVA. By then – as it is now – most states will be resistant to guidance that means new expenses and new election procedures. By then, secretaries of state, private institutions, and private citizens will have done more to complete the job which by the EAC’s silence they have left undone, and the Commissioners’ guidance may be then – as it may be already – too little and too late.
The EAC’s refusal to comply with HAVA’s mandate to provide Assistance to the states has had enormous negative repercussions in the real world of American elections. Surely with the financial resources at their disposal from the taxpayers, the information available in reports from election officials and the National Institute of Standards and Technology (NIST), and the expertise available to them pro bono from the election integrity community, they should be able to provide some valuable guidance sooner than two years from now, a full eight years after the federal law was enacted.