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Washington Lawyer

The Help America Vote Act: Four Years Later

From Washington Lawyer, October 2006

By Joan Indiana Rigdon

havaAs the United States strives to support and help defend democracies abroad, here at home our own democratic values have been called into question. After the last two presidential elections, and the recounts and court battles that followed, millions of Americans are wondering whether and how their votes will be counted the next time they go to the polls.

The Bush–Gore recount in Florida, complete with its embarrassing, televised images of roomfuls of volunteers trying to call the difference between “pregnant,” hanging, and punched-out chads, was supposed to be an anomaly; so were reports that during the same election thousands of voters, many of them poor or black, were turned away from the polls.

In response to the irregularities of that election, Congress passed the Help America Vote Act, or HAVA, in 2002. The act outlined federal standards for upgrading voting machines and voter registration procedures. Among its more significant provisions, it required states to allow voters to cast provisional ballots if their names are not on the rolls when they show up to vote. And in a controversial move that has revived state interest in voter identification requirements, HAVA also required voters who registered by mail to show identification the first time they vote.

The act came with a lot of money. In all, HAVA offered billions of dollars to states to upgrade their election procedures and voting machines. But it left many of the particulars of how to achieve those goals up to the individual states. To receive a share of the funds, states had to form their own HAVA commissions to bring themselves into compliance.

Four years later, the Department of Justice has begun to sue states for failing to comply. It has sued New York for being too slow to upgrade machines, and Alabama for being too slow to establish a statewide list of registered voters. So clearly the pressure is on.

But it remains unclear whether even full compliance with HAVA will significantly improve what seemed so broken in the year 2000.

The new voting machines that HAVA helped buy, for instance, are at the center of a new debate. Election officials say they make for more efficient voting and recounts, but critics complain they are easy to rig because voters can’t be sure what is happening inside them, especially the ones that don’t produce a paper receipt after each vote. By late summer several leading computer scientists had made a sport out of publicly hacking the machines to prove just how easy it is to stuff these new electronic ballot boxes.

HAVA’s provisional ballots were supposed to be tools of inclusiveness. Instead they became a focal point for allegations of election rigging in Ohio in the 2004 presidential election. That is when it became clear that although HAVA requires states to accept provisional votes, it doesn’t actually require states to count them.

As for the voter identification requirement, civil rights lawyers say it subverts one of HAVA’s chief aims.

“It’s extraordinary to me that in a statute that was designed to create greater access to the polls in the wake of vote denial, there were those who insisted on provisions, based on a scant record of necessity . . . that pose greater barriers to the vote,” says Debo Adegbile, associate director of litigation for the NAACP Legal Defense and Educational Fund, or LDF.

Loss of Confidence?
Now that HAVA has had four years to influence the American election system, it is time to ask, how well is it working, and what other changes should be made? To answer these questions, Washington Lawyer interviewed top election and civil rights lawyers, as well as one election official. Some of them assisted with the presidential recounts of 2000 and 2004.

Contrary to ongoing allegations that Republicans stole the last two presidential elections—most recently by Robert F. Kennedy Jr., an environmental lawyer and son of the assassinated 1968 Democratic presidential candidate—none of the lawyers we interviewed believed that either of those elections was stolen. But they hold diametrically opposed views on the current state of the American election system.

In general, the Republicans among them think the election process is improving. Jan Baran, a partner at Wiley Rein & Fielding LLP and former general counsel for the Republican National Committee, has been participating in recounts for three decades. He believes that as a result of HAVA and increased vigilance on the part of election officials and the voting public, “we’ll have a more accurate voting process [ahead] than we had in the last elections. The only time we will start arguing about how inaccurate the process may be is if there’s a really close election and there’s a recount.”

The Democrats, however, believe that Americans have lost confidence in the election process, and that HAVA has done little to change that. John Young, a Sandler, Reiff & Young partner who represented Al Gore in the Florida recount in 2000, doesn’t see much difference between that election and the one in 2004.

“In 2000 we were faced with different voting systems, voter confusion, and a lack of confidence in the system. Today we have different voting machines, which people do not have confidence in to accurately record their vote, and we are also no farther along in voter confidence,” he says.

Chris Sautter, a civil rights lawyer and media consultant who also served on the Gore recount committee (and who, along with Young and fellow lawyer Tim Downs, authored the 1994 book The Recount Primer), is more blunt: “It’s fair to say that our election system is an ugly, dysfunctional mess. I think that every time we hold a national election, we risk a meltdown. We obviously had a very close one in 2000.

“The Help America Vote Act was passed to remedy some of the problems that were highlighted in the Florida recount. But on Election Day in 2004, we had a whole new set of problems, many of which were created by the new law,” he says, referring to provisional ballots.

“I think we’re still heading down the road toward disaster unless we begin to put together a more rational and uniform approach to conducting our elections.”

HAVA, he adds, “was really a Band-Aid.”

Paper Trails
In spring of 2002, as Congress mulled the bill that eventually became HAVA, Senator John Ensign (R-Nev.) proposed an amendment. He wanted the new voting machines called for by the bill to produce a “permanent paper record” that could be used in a manual recount.

As Ensign explained in a May 29, 2002, letter to Senator Mitch McConnell (R-Ky.), who was working to reconcile the Senate and House versions of the bill, “This amendment is simple. It would give voters a receipt at the time their ballot is cast, and allow the voter to confirm, and, if necessary, change the vote before each ballot is cast.”

Ensign’s amendment was included in HAVA, but not with the intent he outlined for Senator McConnell. As it stands, HAVA requires a permanent paper record that could be used in a manual recount; it also requires the machines to give voters a chance to review their choices before they cast their ballots. But it doesn’t require the machines to produce paper records for each voter. Nor does it require that voters review their choices on paper.

So, many states have used their HAVA funds to buy electronic voting machines that don’t produce paper records after each vote.

The spending took place recklessly, says Young. “We spent too much money too quickly” on technology that is still evolving, he says. “You’ve got to fault Congress, people who are trying to do good. You’ve got to fault the states, who rushed into the void with federal money without thinking through the law of unintended consequences. And elections are about unintended consequences.”

Consider California. After the state invested its HAVA funds in electronic voting machines, voting rights groups complained that the system lacked transparency. Legislators responded by passing a series of laws that require the machines to produce a paper record that voters can verify before they vote. One bill also required that the same paper record be used to manually audit one percent of each precinct’s votes as a way of double-checking the accuracy of voting machines. To comply, California had to replace its old machines with new ones that produce paper records after each vote.

Verified Voting Foundation, a nonprofit based in San Francisco, argues that voter-verifiable paper trails are essential for giving confidence to voters who are worried that their votes may be lost or miscounted. The group’s founder, David Dill, a Stanford University computer science professor, says computers can’t be trusted unless their work can be checked. “I’m not saying they’re fraudulent. But there’s no way to know that they’re not fraudulent.”

Verified Voting’s lobbying arm, VerifiedVoting.org, supports the passage of a bill that would amend HAVA to require voter-verifiable paper trails. Several such bills are pending in Congress. The one with the most support is H.R. 550, sponsored by Representative Rush Holt (D-N.J.), which had 197 sponsors as of early July. It has seen no congressional action, other than a few introductory remarks, since last year. That bill requires a paper trail and random audits of electronic voting machines based on the paper trail. It also requires manufacturers to publicly disclose their software source code, so the code can be checked for security flaws.

According to VerifiedVoting.org, as of late summer 28 states had passed laws requiring voter-verifiable records; another 12 plus the District of Columbia have proposed such laws; the remaining 10, including Rhode Island, Delaware, and three Gulf states, have no such proposals. After much debate, the act was renewed without significant change in July.

Chris Riggall, former press secretary for the secretary of state of Georgia, finds it ironic that so much emphasis is now being placed on paper trails. After all, lever machines don’t use any paper (they turn dials), he points out. And those have been in use since 1892.

“The irony is we had 73 counties in Georgia that had [lever machines] until we changed to electronic machines. And I never once got a call from a voter or from a reporter saying, ‘How do I know my vote really counted? I pushed this lever down. I don’t know if that dial turned.’ I never got that call because nobody ever thought about it,” says Riggall.

Paper trails don’t guarantee security. Electronic voting machines can be programmed to register one vote and print out a paper record indicating another. (Dill says an error like this can be caught by cross-checking electronic tallies with paper records.) Or the paper records themselves can be altered, compromising the accuracy of any recount based on those records.

“We’ve had innumerable cases where the ballot box was stolen or stuffed,” says Riggall.

“Paper is the easiest thing to compromise, not the hardest. I can do it. Give me access to a ballot box and a pen, and I can do all kinds of things, even with optical scan,” he says, referring to paper ballots that are scanned into computers after voters use pens to fill in bubbles next to their choices. “I can double-bubble all of my opponents’ votes and they’ll all be overvotes.”

In an overvote a voter chooses too many people for a particular office, thus invalidating the vote.

Dill concedes that paper can be compromised. But he points out that we have developed systems for protecting paper. “When we hear about paper-based fraud, we can easily identify how to change procedures that cause it to happen,” such as not leaving ballot boxes unattended, he says.

In the end, paper trails’ psychological importance may outweigh any practical shortcomings. George Terwilliger III, a White & Case partner who served on President Bush’s recount team in 2000, is in favor of anything that will give voters more confidence in the election system.

“The process of voting is one of most fundamental exercises that take place in a democratic society,” he says. “Ensuring the integrity of that process is therefore absolutely essential to ensuring the confidence of citizens in their democratic institutions. If there is a problem with [paperless] electronic balloting that undermines the level of confidence that’s required, then I’d be for going [to a system with a paper trail].

“I’m not a voting machine professional, and I don’t pretend to be. But anything that creates duplication and helps to ensure integrity in the process is a good thing.”

Sautter agrees. “[Congress] needs to amend HAVA to require a paper trail,” he says.

Hacking an Election
All new technologies are suspect. When merchants first started selling goods over the Internet, many customers were wary. They didn’t want to send their credit card numbers into cyberspace, only to have those numbers hijacked by some pimple-faced teen with an expensive taste for stereo equipment. But most of these same customers had no qualms about handing over their credit cards several times a day to waiters, cashiers, and other strangers who happened to work in stores.

So it goes with voting machines. Electronic voting machines are a new technology, and as such they pose new and very real security risks. Dill and several other computer scientists have said that the machines are alarmingly easy to rig. Individual machines might be hacked at the precinct; or an entire state’s machines could be hacked by a rogue programmer at the manufacturer.

Until the scientists reach a point where they consider the machines to be invulnerable to hacking—and that may never happen—there is a danger that future elections will hinge on court cases about whether certain ballots from certain machines are valid.

“People who ought to know what they’re talking about have raised . . . concerns” about security flaws in electronic voting machines, “and that concerns me,” says Terwilliger. “What we should be trying to avoid is expanding the number of election issues and voting issues that go to court. Elections should be decided by ballots, not by judges deciding what ballots are votes.”

Still, it helps to maintain perspective. The old lever and punch card voting machines were plagued with their own problems. Riggall says that in Georgia, with the old machines, “we had huge numbers of undervotes.”

An undervote is a ballot that registers no vote for president or the highest-level office on the ticket. Rarely do people decide not to vote for president. Undervotes in presidential elections are widely considered to be errors on the part of the machine or the voter.

Electronic machines have reduced this problem in Georgia. According to a joint study by the Caltech/MIT Voting Technology Project, Georgia’s undervote rate plummeted after the state replaced its lever machines with electronic ones. With the old technology, undervotes accounted for 3.5 percent, or 94,000, of all votes cast in 2000; with electronic voting machines, the undervote rate shrank to less than one-half percent.

Sautter favors a compromise technology: optical scan machines, which combine tangible paper ballots that voters mark by hand and review before voting with the efficiency of an optical scanner that electronically reads and tallies the vote.

“There’s a high level of confidence in that. People see the ballot before they stick it in the ballot box,” he says.

Dill says optical scan is a much better solution than electronic voting machines that print a paper trail after every vote. In addition to being cheaper, optical scan machines don’t get paper jams or run out of toner, both of which slow down the voting process, causing longer lines. Also, the paper ballots that get scanned serve as a paper trail that can be used in a recount, or to spot-check the work of the scanner.

Optical scan is “quite reliable according to any metric. There’s nothing new fangled about it, and it’s inexpensive,” says Dill.

Ease of Use
Any voting machine will draw criticism when it comes to ease of use. “People say, ‘I’m confused by the butterfly ballot. I don’t understand punching cards. I don’t understand where I have to touch the screen. I don’t understand how these mechanical levers work. Do I fill in the dot or do I check it?’ These are human shortcomings,” says Baran.

If a county, or ideally a state, standardized on one machine, voters would be less likely to have to learn new machines if they move or are redistricted, he says. Volunteer poll workers would have fewer machines to learn. And if there’s a recount, the process will go more smoothly.

Baran helped recount last fall’s race for Virginia state attorney general, which was decided by 323 votes, out of just over two million. He recalls having to deal with several different systems, ranging from punch cards to optical scanners to paperless electronic machines.

“It would be a lot easier if it was all the same statewide, not only for election officials. It would presumably be easier for the voter,” he says.

The trouble is, when one state uses only one system, it is easier to hack the machines to rig the system.

Voter Identification Requirements
HAVA was the first federal law to require identification from certain voters: those who are voting in federal elections for the first time after registering by mail (unless they submitted identification with their registration application). The identification doesn’t have to include a photo. HAVA directs states to accept a variety of forms, including utility bills and paychecks with the voter’s name and address.

Republicans have long held that voter identification reduces fraud by weeding out ineligible voters and preventing multiple voting.

“Having a voter identification or some kind of ID that is an indication of citizenship and eligibility to vote is a very good idea. I don’t understand why people oppose that,” says Terwilliger. “The ineligible voter who votes isn’t merely a defect in the integrity of the voting process. It is disenfranchisement of every one else who votes to some degree.”

Democrats see voter identification laws, especially those that require driver’s license or other government-issued photo identification, as a thinly veiled attempt to disenfranchise those people who are least likely to have those forms of identification: voters who are poor and minority voters, who are more likely to vote Democratic.

That argument has gained some traction in the federal courts. Last year, when Georgia passed a law requiring photo identification from voters, U.S. District Judge Harold Murphy invalidated it, saying it was essentially a “poll tax” because the identification cards had to be purchased. Georgia revised its law to accept free identification cards as well. In July, Judge Murphy blocked enforcement of the new law, saying it unfairly discriminates against voters who don’t have driver’s licenses or other government-issued identification.

To comply with HAVA, each state must pass a law requiring voter identification from first-time voters who registered by mail (again, without having provided identification with their application). Currently, about half the states have passed such laws.

But several of these states have gone beyond HAVA’s requirements by also requiring photo identification. Besides Georgia, as of late summer Florida, Hawaii, Indiana, Louisiana, Missouri, and South Dakota had also passed laws requiring voters to present photo identification, according to the National Conference of State Legislatures.

If the federal decision against Georgia’s law stands, some of these other states may have to rethink their own photo identification requirements. “Courts will certainly have to continue to wrestle with
the constitutional boundaries of state-imposed identification requirements,” says Marc Rotenberg, the executive director of the Electronic Privacy Information Center and adjunct professor of information privacy law at Georgetown University.

Rotenberg is not opposed to requirements that voters produce utility bills or similar documents to establish proof of identity and residence, but he is opposed to more stringent laws that require photo identification. With those requirements, “in effect [states] are trying to disenfranchise people who would otherwise have the right to vote,” he says.

The NAACP Legal Defense and Educational Fund believes that states are using HAVA as a stepping stone to pass more voter identification laws that discriminate against minorities and the poor. Adegbile says this trend defies the spirit of the 1965 Voting Rights Act, which itself came into question this past summer when several Republican members of Congress argued that it is no longer necessary for federal officials to vet changes in election laws in southern states. After much debate, the act was renewed without significant change in July.

In the case of Georgia’s voter identification law, according to Adegbile, “what’s significant is not whether the judge got it marginally correct or got it marginally wrong [in blocking the law]. What’s significant is that we’re having a straight-faced legal discussion about whether or not a provision of the Georgia legislature, 40 years after the Voting Rights Act, is a poll tax. Five years ago law students interested in voting laws were not assuming that they’d be litigating poll tax cases.
“One of the questions the country needs to ask itself is, as many hold up the image of a purple finger in Iraq representing newly given access to the democratic process, are we thinking about the aged African American hand in the black belt that may be getting cut off from the political process by some of these voter ID requirements?”

Young says states don’t have to require identification to confirm a voter’s identity and residence. “There are other ways. . . . One is that you sign a declaration subject to penalty of perjury.” In Minnesota, for instance, voters without identification may register with a “voter voucher,” or an oath signed by another eligible voter from the same precinct.

Very few people are going to sign their name to something false if doing so makes them guilty of a felony, says Young. “Voter fraud really isn’t a big problem. Voting systems that prevent people from voting are.”

Republicans think differently. Senator Kit Bond (R-Mo.), for instance, was the driving force behind HAVA’s inclusion of voter identification requirements. In arguing for them, he pointed out, among other things, that a dog named Ritzy Mekler was discovered to have voted in St. Louis in 2001.

Provisional Ballots
One of the major issues of the 2000 presidential election was that large numbers of voters complained they were turned away from the polls. That happened because their names weren’t on the rolls, because they couldn’t provide the voter identification required by their states, or because poll workers, rightly or wrongly, determined they weren’t eligible to vote.

HAVA tried to address this problem in two ways. First, it requires states to establish and update statewide voter registration lists that can be electronically accessed by election officials. As part of maintaining the lists, states are instructed to “expedite” the addition of eligible voters and to purge ineligible voters regularly.

Second, HAVA includes a fail-safe provision so that no voter is turned away from the polls. Voters whose names aren’t on the rolls, or who lack proper identification, or who appear to be ineligible to vote for any other reason, must be allowed to cast provisional ballots. (Several states had already offered provisional ballots before HAVA; the new law makes them mandatory nationwide.)

Few suspected that these new types of ballots would play a key role in the 2004 presidential election, in which more than 160,000 voters cast provisional ballots in a contest that was ultimately decided by 118,600 votes. George W. Bush’s win in the pivotal state of Ohio was key to his winning the election.

Democrats believe that the large number of provisional ballots cast in the 2004 election points to an election system that is broken. “The ballot is supposed to be a rare exception, something that’s used when all else fails,” says Young. “[Instead] it appears it’s being used as a panacea to cover up sloppiness.” He questions whether election officials do their best to confirm whether voters are registered before handing them a provisional ballot.

Some lawyers find the ballots worrisome because of their uncertain legal status. Although HAVA requires states to offer provisional ballots to voters, it does not actually require them to count those votes. Instead it says the votes “shall be counted . . . in accordance with state law.” Those laws vary.

Some states will count the vote only if the voter returns the same day with identification. Others will give the voter more time. Some states will count the vote if it is cast in the wrong precinct. However, more than half won’t, according to Demos, a New York–based nonpartisan think tank that tracks how states have implemented HAVA.

Then there’s the issue of time. If many thousands of provisional votes are cast in a precinct, there are no guarantees that they will all be counted before the election is called. “The practical reality,” says Riggall, is that election officials “can’t hold the election open for months.

“What happens in Georgia and in other states as well is there are invariably instances where they just don’t get to that ballot. They’re not able to clearly determine anything in a timely manner, and the clock hits midnight and that provisional ballot, which may be a legitimate ballot which should be counted, is not counted.”

“The concept of provisional ballot is the right idea,” says Sautter, “[but] there have been problems in terms of execution.”

Demos is less kind. It has dubbed provisional votes “placebo votes.”

Adegbile says the provisional ballot is “one of the notable areas where Congress punted. They developed a statute to provide uniform standards [for provisional ballots], but they built into the statute an effort to defer to local practices. Which bring you right back to the problem that it purported to address.”

On Election Day 2004, as part of a campaign called “Election Protection,” LDF fielded calls from volunteer election monitors in the state of New York. Adegbile recalls several calls about voters who were directed to different precincts, occasionally multiple times, before eventually casting provisional ballots.

“At some point you tire of trying to find the polling place, and you cast your provisional ballot wherever you may be. But if the rule is the provisional ballot only counts if you cast it in the right polling place, whether or not your vote counts can depend on whether you were properly advised by the poll worker.”

Considering problems like these, says Adegbile, “provisional balloting can at times be a game of voting roulette.”

Voter Registration Lists
Adegbile has a different solution: instead of focusing on better ways to handle provisional ballots, make the newly mandated statewide lists of registered voters easily accessible to voters as well as election officials. That way, voters can check the list before Election Day to make sure they are actually registered. And when voters show up at the wrong precinct, instead of guessing where to send them, poll workers can consult the list to find the proper precinct.

HAVA’s provision for a statewide list of registered voters also requires states to purge from their lists any voters who have not “responded to a notice” (presumably stating that they are about to be purged) and who have not voted in the previous two elections for federal office.

Democrats have said that some of these purges disproportionately struck voters who make up their historical base: minorities and the poor. The U.S. Commission on Civil Rights agreed. In a report on election regularities in 2000, the commission found that Florida’s “overzealous efforts to purge voters from the rolls, conducted under the guise of an anti-fraud campaign, resulted in the inexcusable and patently unjust removal of disproportionate numbers of African American voters from Florida’s voter registration rolls for the November 2000 election.”

Early and Absentee Voting
Young suggests that states can cut down on the need for provisional ballots by allowing registered voters to cast regular votes anywhere in their county, or perhaps beyond. “It may be that we need to change the rules, and allow people to vote statewide in certain elections. We may need to allow people greater latitude in where they vote.”

Baran thinks that would be too chaotic. “If we’re going to have registration and you want to have some order and reduce opportunities for not only confusion but fraud, then there ought to be an accountability to a precinct where the voter is registered. There are other ways to make it easier for people to vote.”

For instance, Baran favors extended voting periods, such as the two-week period of in-person voting in Texas. But he also sees how this can change the dynamics of elections. “As more and more people vote early, candidates are going to be stumped. How do I identify who’s voted? What issues do I address that are important [to those who haven’t yet voted]?”

Terwilliger says an extended voting period fundamentally changes the political process. “If that’s what the people of Oregon want to do, that’s their prerogative,” he says of the state’s roughly two-week mail-in process. “But elections have a season, and the end of that season is the making of the vote. While we do make a provision for people to vote early, making voting an ongoing process that lasts for weeks or months seems to me to distort [the process].”

Early voting also reduces the impact of a November surprise. “Suppose they find something in what a candidate says or does, or a candidate’s background, that would have changed their minds?” Terwilliger asks.

The middle ground may be something more like the weekend-long Czech election, suggests Baran. “Some people vote on Friday, some on Saturday, then everybody has dinner. That seems to be something we might want to adopt.”

Baran prefers a two-day in-person election to extended voting by mail, as happens in Washington State, where half the vote arrives by post, and in Oregon, where nearly all the votes are cast that way. “The act of going to the precinct and voting is a communal act. It’s something that I still think is important to preserve.

“People should feel that they are part of a society that is engaged in something important. One gets that feeling by going to a poll and seeing his or her neighbors there as well.”

Oregon officials argue that voting by mail introduces a new communal aspect: children can study the ballot at home and watch their parents vote.

Another way to increase voter participation is by allowing voters to register on Election Day, as opposed to two to four weeks before the election, as most states require. Half a dozen states currently offer same-day registration, and they boast higher voter turnout. According to Demos, states with Election Day registration reported an average voter turnout of 74 percent in 2004, compared with 60 percent for states without.

Baran sees no problem with same-day registration. “I haven’t heard of any fraud,” he says. “It seems to work in Minneapolis.”

Terwilliger believes same-day registration is an opening for fraud. “The reason a period was interposed between registration and voting is for helping to ensure the integrity of the voting process. I don’t think same-day registration is necessarily consistent with that goal.”

A Deep Tension
Overall the lawyers interviewed for this article had very mixed feelings about how well HAVA has addressed the problems that so boldly presented themselves in 2000. The days of chads and butterfly ballots may be gone, but they have been replaced with worries about hacking.

It’s also unclear whether HAVA will improve the odds that eligible voters will be able to vote and have their votes counted. Many will look to this fall’s elections for further evidence, either way.

“HAVA reveals a deep tension between national standards and deference to state prerogatives to conduct elections,” says Adegbile. “Part of what the debate over HAVA revealed is that there are many pressure points in the political process. Some [people] really want to make voting easier and some don’t. And when you open those issues up, there is the possibility of enhancements and improvements in voter access, and there’s also the possibility of backsliding. And I think HAVA did both.”

Freelance writer Joan Indiana Rigdon wrote about the controversy over leaking classified information in the May issue.