The Help America Vote Act
10 Years Later
Melissa Picciola, Equip for Equality
Before HAVA
• Voting Rights Act of 1965 (VRA)
• “Any voter who requires assistance to vote by
reason of blindness, disability, or inability to
read or write may be given assistance by a
person of the voter’s choice” except person’s
employer or union representative
• Voting Accessibility for the Elderly and
Handicapped Act of 1984
• Within each state, each election authority
shall assure that all polling places for Federal
elections are accessible
• Limited to physical disabilities
• Onus was on state’s highest ranking election officer
What about the ADA?
• No qualified individual with a disability
shall, by reason of such disability, be
excluded from participation in or be
denied the benefits of the services,
programs or activities of a public entity,
or be subjected to discrimination by any
such entity.
• Where are the shortcomings?
• Undue financial and administrative burden
• No minimum federal standards with regard to
voting/accessibility
• Title II Program Access does not lead to
universal access at all polling places
Voting Accessibility before HAVA
• 84% of polling places had some barrier
• Only 16% of polling places have no obstacles
“from the parking area to the voting room”
• 18 states lacked statutes or regulations
requiring or suggesting that voting booths and
equipment should accommodate wheelchairs
• 28 states had general provisions only
• 29 states did not require magnifying
instruments; 47 did not require large print
ballots; 45 did not require Braille ballots
• 27% of counties failed to include accessibility
among the criteria used in making polling
place selections
Election 2000 and HAVA
• HAVA (42 U.S.C. §§15301-15545) is
most important direct federal response to
the 2000 election fiasco in Florida
• Many provisions of HAVA were directly
inspired by the controversy; many came
along for the ride
• Two main purposes: Funding and Regulatory
• Disability community seizes opportunity
to reform elections and seek to increase
access to polls, including ability to cast
votes independently and privately
HAVA: Voting equipment
• Main thrust of HAVA was to encourage states
and localities to change their voting
equipment in order to promote greater
accuracy in casting and counting of votes.
• Large majority of federal funding to states (close
to $3 billion) authorized by HAVA was intended to
purchase new voting equipment.
• HAVA did not require certain type of voting
machine, but did mandate that states replace
lever voting machines with electronic voting
machines compliant with minimum requirements
• Permit voters to verify votes in “private and independent
manner”
• Notify of errors in votes, including undervoting
HAVA: Access for People with Disabilities
• Intended to make the voting process
the same for individuals with
disabilities and those without, including
privacy and independence
• Mandates that every state implement an
electronic style of voting machine system
that will allow a voter with any type of
disability to vote on the same machine as
a voter without a disability
HAVA: Additional Provisions
• Create centralized databases of
registered voters in each state
• Single, uniform database at state level
• Improve administration of elections
• Voter education
• Establishes Federal Election Assistance
Commission
• Issue guidelines on implementation and
compliance with HAVA as well as
guidelines for voting systems
HAVA: Additional Provisions
• Provisional Ballots
• Allow individuals whose voting registration
status is in question to preliminarily cast
their votes on ballots that will then be
counted once voter’s registration status is
verified
• DOJ Enforcement
• U.S. DOJ may seek declaratory and
injunctive relief for violations of HAVA
Missing HAVA Provisions
• Ballot Design
• EAC issued voluntary guidelines in 2007, but
preliminary indications are that election
authorities are not widely following them
• More concrete reactions to Florida in 2000
• Nothing regarding recounts, other disputes
• Private right of action to litigate under HAVA
and get money damages for violations
• Did contain provisions for HAVA
administrative complaint process
Evaluating HAVA’s success
• Overall, HAVA was full of centrist
recommendations that focused on the
problems that had been highlighted in the
recount controversy
• The provisions of HAVA that have ultimately
caused the most controversy were prompted
by issues that did not arise at all in Florida,
and only were introduced in the
congressional process through the side door
• Accessibility mandate
• Identification requirements for first-time
voters who registered by mail
Evaluating HAVA’s success
• In 2008, polling places with no barriers
increased from 16% to 27%
• Data to show how accessible voting
was before and after 2000, from the
perspective of the voter, is virtually
non-existent
• No studies that allow assessment directly of how
access to voting to the disabled changed after
HAVA, particularly as it relates to the use of
voting machines
Compliance with HAVA
• Most states complied with requirements
for voting systems by 2004 deadline, and
all but New York complied by 2006
• Election Assistance Commission tested and
certified different kinds of voting machines
made by different voting machine
manufacturers
• States also had to submit a
comprehensive “State Plan” detailing how
federal funding will be used and how
state will distribute funds to others
Compliance with HAVA
• States have complied with the
requirement to implement provisional
ballots
• Most states moving toward full
compliance with centralized voter
registry equipment
• Registration problems appeared to
have declined since 2000, but it is
impossible to peg this improvement on
HAVA
Effect: Voting Machines
• Rather than transform and unite all voting
systems, election authorities have one
electronic voting machine, for use only for
people with disabilities
• Almost everyone is using optical scan paper ballot, not
touch-screen machine
• “Voter Verified Paper Trail” is an issue
• Accessible machines are not being used extensively
• In rush to purchase machines, jurisdictions
may have machines they don’t fully
understand
• Outsourcing of support
• Inadequate training of election judges, especially in
smaller jurisdictions
Effect: No further reform
• Despite some improvements, HAVA
has likely hardened opposition to
further election reforms among officials
in small and medium-sized local
jurisdictions
• Increased cost and complexity of election
administration
• Must comply with state and federal
mandates for situations that occur
relatively infrequently
• E.g., provisional voting
Effects of HAVA
• HAVA-mandated abandonment of
punch cards clearly improved the
accuracy of voting machines that were
used throughout the United States
• Findings concerning the mandated
abandonment of mechanical lever
machines are less consistent
• Increased use of technology also prompts
security concerns
• i.e. concerns about electronic machine being
“hacked”
Effect: Evaluating Accessibility
• People with disabilities emphasize getting to
the polls or navigating the voting system
once at the polling place when asked about
why they fail to vote
• HAVA does not address these issues
• Difficult to know how the machine
accessibility mandate should be compared to
other problems facing voters with disabilities
Effect: Problems Remain
• People with disabilities still have
problems voting
• Those problems have not changed much
since 2000
• HAVA has not been an especially effective
vehicle for granting people with disabilities
richer access to voting
• HAVA was successful as a funding
mechanism; it was less successful as a
regulatory mechanism
Unintended Consequences
• Controversies over Electronic Voting
• Concern about use of computers in casting
and counting ballots
• Increased attention on proper identity
of voter
• Current attention to voter fraud and voter
ID laws can be connected to HAVA’s voter
registration list requirements, though
HAVA is certainly not the cause for these
movements