5079_e08_p424-443 7/12/04 8:57 AM Page 424 ELECTION LAW JOURNAL Volume 3, Number 3, 2004 © Mary Ann Liebert, Inc. Implementing the Help America Vote Act LEONARD M. SHAMBON URING NOVEMBER AND DECEMBER OF 2000, plementation by the deadline, (2) issues that Dmost of the world was bewildered by our were not addressed in the legislation, and (3) struggle to end the election for President. Im- reasons why it is difficult to emulate the more ages of people holding punch cards up to the efficient and non-partisan election regimes of light to evaluate the position of chad did not both Canada and Mexico. instill confidence in anyone about the method of determining who won. Few of us had pre- viously considered what happened to a ballot THE NATURE OF AMERICAN once we dropped it in a collection box. Stories ELECTION ADMINISTRATION emerged of voters showing up at the polls only to be told they were not on the register of eli- The 2000 election made us all dimly aware gible voters, yet we were ignorant of the way of the intricacies of our elections. We learned that those registration lists were compiled or about the high degree of decentralization maintained. Americans never really considered merely from watching television reports of the how poll workers were recruited or trained, court actions in more than six Florida counties, only that voters were grumpy when poll work- all seemingly independent from each other and ers did not seem to know what they were do- from any significant state control. We also ing. learned about the massive number of people In the aftermath of the election, many com- involved in a recount as we watched the lines missions and task forces were created to iden- of observers line up day after day at the tify the problems and institute remedies. States Emergency Operations Centers of Broward initiated legislative reforms. At the national and Palm Beach counties. These institutional level, the Congress began to consider legisla- arrangements were not peculiar to Florida. As tion in earnest and, after intense negotiation, we have learned since 2000, U.S. elections are passed the Help America Vote Act (“HAVA”) very complex undertakings: in October 2002. States are now in the process of making improvements to meet their HAVA When one looks at America’s election sys- obligations by the January 1, 2006 deadline. tem, one cannot help but be impressed This paper describes the central events lead- with how well it works, given the enor- ing to the passage of HAVA, explains HAVA, mous complexity, the lack of resources, and examines the pattern of state plans to im- and the extremely high expectations. To il- plement HAVA. The paper closes with a dis- lustrate, the 2000 election produced a cussion of (1) issues that impede HAVA im- turnout of approximately one hundred million (100,000,000) voters and ended in a statistical tie. Ballots were counted Leonard Shambon is Counsel at the law firm of Wilmer using five different technologies and Cutler Pickering Hale and Dorr LLP. He was Assistant to dozens of different products. Voting was the Co-Chair of the National Commission on Federal Elec- conducted at approximately two hundred tion Reform (the Ford/Carter Commission) and Counsel to Congressman Steny Hoyer for the passage of the Help thousand (200,000) polling precincts, staffed America Vote Act of 2002. by approximately one point four million 424 5079_e08_p424-443 7/12/04 8:57 AM Page 425 IMPLEMENTING THE HELP AMERICA VOTE ACT 425 (1,400,000) poll workers who were re- and a political process subjected to pro- cruited from the local citizenry to work tracted litigation.3 one day in performing America’s most im- portant public function. The vast majority of these poll workers received little train- THE BUSH v. GORE PRINCIPLES ing, worked 14 or more hours on the job and were paid minimum wage or less. Whatever one thinks of the Supreme Court’s While the dedication and commitment of handling of the Florida recount, the Court’s ul- these citizens is unquestionable, the real- timate decision in Bush v. Gore4 highlighted a ity is that they are plucked from their daily number of very important points about Amer- lives and jobs to perform a task a few times ica’s election administration. Most importantly, a year for which they have little expertise. the Court pointed out that the machinery, for The election process was supervised by a variety of reasons, does not count all the votes approximately twenty thousand (20,000) that are cast: election administrators.1 The closeness of this election, and the mul- At the same time, the costs of elections and titude of legal challenges . have brought voter registration have been borne, for the most into sharp focus a common, if heretofore part, not by the state or federal governments, unnoticed phenomenon. Nationwide but by local governments and by them only re- statistics reveal that an estimated 2% of luctantly: ballots cast do not register a vote for President for whatever reason, including The federal government bears no cost for deliberately choosing no candidate at all the election of federal offices. Generally, or some voter error, such as voting for two state governments bear no cost for the candidates or insufficiently marking a election of legislatures, governors, state ballot.5 officers and judges. When local public pol- icy makers are confronted with decisions Further, the various voting system types such as buying new fire trucks, disposing in use (paper ballot, lever, punch card, optical of garbage, adding police officers or build- scan or touch screen equipment) can have ing and paving roads, etc., or to buy new markedly different levels of effectiveness. Fi- voting equipment, pay election workers nally, the standards for determining when to adequately or fund additional training, accept a ballot not conforming to the norm for the decision usually does not favor the each system vary widely (if not wildly). Re- election improvements.2 sponding to what was initially a last minute ar- gument by the lawyers for George Bush, the This institutional arrangement could not Court agreed that there was a significant equal bear the strain of such a close national election. The result in 2000, unlike the prior election crises of 1800, 1824 and 1876, was that: 1 National Task Force on Election Reform, Election 2000: Review and Recommendations by The Nation’s Elections Ad- Every aspect of the election process was ministrators 4, 30–31 (Aug. 2001) (“Election Center”); see also The National Commission on Federal Election Re- put under a microscope and viewed by form, To Assure Pride and Confidence in the Electoral Process an anxious nation that saw controversial at 25 (Aug. 2001) (“Ford/Carter”). ballot design; antiquated and error- 2 Election Center at 3, 30. The Ford/Carter Commission prone voting machines; subjective and noted that election administration gets so little funding nationally that we do not know in fact how much is spent. capricious processes for counting votes; The smallest governmental general expenditure category rolls that let unqualified voters vote in reported in the Statistical Abstract is for garbage disposal. some counties and turned away quali- Ford/Carter at 68. 3 Ford/Carter at 17. fied voters in others; confusion in the 4 531 U.S. 98 (2000) (“Bush v Gore”). treatment of overseas military ballots; 5 Id. at 103. 5079_e08_p424-443 7/12/04 8:57 AM Page 426 426 SHAMBON protection problem about the handling of the tical-scanning systems. Thus, in a sys- Florida recount and inferentially a significant tem that allows counties to use different equal protection problem nationally: types of voting systems, voters already ar- rive at the polls with an unequal chance The right to vote is protected in more than that their votes will be counted. I do not the initial allocation of the franchise. Equal see how the fact that this results from protection applies as well to the manner counties’ selection of different voting ma- of its exercise. Having once granted the chines rather than a court order makes the right to vote on equal terms, the State may outcome any more fair.8 not, by later arbitrary and disparate treat- ment, value one person’s vote over that of Whatever the precedential strength of the another.6 Court’s opinion in Bush v. Gore, the disparate voting systems, disparate error rates and dis- Discussing the various specific inequalities in parate counting standards have resulted in a dissenting opinion, Justice Souter stated that: searching probes into how we run our elec- tions. Petitioners have raised an equal protec- tion claim . in the charge that unjustifi- ably disparate standards are applied in POST-2000 STUDIES AND different electoral jurisdictions to other- CONGRESSIONAL ACTIVITY wise identical facts. It is true that the Equal Protection Clause does not forbid the use In the immediate aftermath of the election of a variety of voting mechanisms within and the Supreme Court decision, a host of stud- a jurisdiction, even though different ies were launched to investigate what went mechanisms will have different levels of wrong in the 2000 election and what improve- effectiveness in recording voters’ inten- ments could be made. The most well known tions; local variety can be justified by con- was that by a private commission headed by cerns about cost, the potential value of in- former Presidents Ford and Carter.9 Other no- novation, and so on. But evidence . here table reports affecting the debate included a se- suggests that a different order of dispar- ries by the United States General Accounting ity obtains under rules for determining a voter’s intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of 6 Id.