The Help America Vote Act: 20 Years Later
It’s no secret that the delay in determining the 2000 presidential victor put election administration on the federal agenda for the first time ever. Just under two years later, on Oct. 29, 2002, President George W. Bush signed into law the Help America Vote Act (HAVA), which set operational requirements for federal elections and provided the first-ever federal funding for America’s elections.
Now, 20 years later, it’s time for a brief review of HAVA’s passage, the changes it made to state policies and the act’s future. For a more complete rundown, read the Congressional Research Service’s 2021 analysis.
HAVA was enacted with overwhelming bipartisan support: the House voted in favor 357-49 and the Senate tally was 92-2. But it wasn’t all lollipops and rainbows along the way. Negotiations were “brutal,” says Doug Lewis, then the executive director of The Elections Center, an association of election officials. Now retired, Lewis recalls, “It was a long, hard-fought deal. Both sides had to be convinced that neither side could get an upper hand for their own benefit; only then did they settle down and ask, ‘truly, how do we make this work?’”
Along the way, Congress turned to NCSL, the National Association of Secretaries of State, the National Association of Counties and the Election Center for guidance. “It was the first time that Congress relied upon elections professionals from around the country as to what would work and why,” according to Lewis. The broad base proved important—Congressmembers and staffers could talk to experts of their own stripe “to find out if we were snowing them or if this was actual stuff that had to happen,” recalls Lewis. “Once Congress found out that 95% of election administration has nothing to do with politics, that worked out really well.”
“No one loved all of HAVA, but it was something people could deal with,” says U.S. Election Assistance Commission (EAC) Chairman Thomas Hicks, one of the two Democratic commissioners. “People thought, ‘I’m not getting everything I want, you’re not getting all you want, but it truly made the process better.’”
“It has been a very successful bill for a lot of reasons,” says Commissioner Christy McCormick, one of the two Republican EAC commissioners. “It has certainly brought more integrity to the voting process.” Both McCormick and Hicks were appointed in 2014 after having worked in elections for many years.
In fact, HAVA created the EAC, a small federal agency aptly defined by its middle name, “assistance.” (NCSL advocated successfully that the EAC would be advisory only, with no regulatory powers, to maintain state flexibility.) It isn’t a regulatory agency in any way; instead, it’s a clearinghouse for information. Although election officials are the primary audience, state legislators can and do use it too. “We’re getting more calls from legislators now, because there’s more interest in election administration than ever,” says McCormick.
Besides setting up the EAC, HAVA did at least three other things: made administrative changes, set requirements and guidelines for voting equipment and provided funding to support these changes.
HAVA established a baseline for the conduct of federal elections, which, practically speaking, means almost all state elections, as well. These changes were novel 20 years ago but are now standard operating procedure:
- States that didn’t have Election Day registration were required to provide provisional ballots to voters who show up and aren’t on the rolls. The affidavit on the provisional ballot’s exterior envelope is reviewed after the polls close to see if the voter was indeed eligible to vote—and therefore whether the ballot can be counted.
- Every polling place in the nation was required to have equipment for people with disabilities to vote independently and privately. (Given this change and others, Hicks calls HAVA “the fastest piece of civil rights legislation ever passed.”)
- States were required to have a centralized voter registration database, rather than relying on multiple county-based voter lists, which was a good step for voter list maintenance.
- First-time voters were required to show ID either when they register to vote or the first time they show up to vote. This is the first, and so far only, federal voter ID requirement.
- The EAC was required to create a federal mail voter registration application that works in all jurisdictions. With the advent of online voter registration in many states, however, the federal form has become less important.
- States were required to provide at least a minimum of voter information, including a “voters bill of rights” at polling places.
THE FUTURE: Congress could amend, repeal or add requirements to HAVA. The law was expanded in 2009 to allow funding to support the new federal Military and Overseas Voting Empowerment Act, which required ballots be sent to overseas voters 45 days before Election Day so they have a better chance of making it back in time to be counted. Since then, there have been no other changes. Post-election audits, voter ID for all voters, crosschecking statewide voter registration databases and any number of other policies could be mandated by amending HAVA. With bipartisanship in short supply, such changes aren’t likely, and if any ideas were to be seriously considered, state lawmakers would be on alert to ensure that Congress not pre-empt their states’ rights to establish elections policies.
HAVA gave the EAC the task of developing and maintaining standards for voting equipment, largely to end the use of equipment that proved subpar in 2000, such as lever machines and punch card systems. The act also required that federally certified equipment give voters a second chance, should they make a mistake on their ballot in the polling place.
The negotiated language does not require states to follow these new standards, so they are called Voluntary Voting System Guidelines (VVSG). The goal of these guidelines is for every jurisdiction to be able to affirm that its system is accessible, usable and secure. “The VVSG pushed the states into requiring basic functionality,” says McCormick. “Could the voter review their vote before casting it? Could they change their vote at the polling place? We didn’t have anything like that before. It was necessary to set minimum standards, even if the federal government didn’t require them.”
Could they change their vote at the polling place? We didn’t have anything like that before. It was necessary to set minimum standards, even if the federal government didn’t require them.”
Each state has election tech requirements of its own, but most states test to federal standards or require full federal certification. Practically speaking, vendors are unlikely to offer products that don’t meet those standards, so it would be hard to buy something that isn’t in compliance.
Since the adoption of VVSG 1.0 in 2005, updates have been slow in coming, and vendors have been slow to adapt to new guidelines. VVSG 1.1 was adopted in 2015, and VVSG 2.0 was adopted in February 2021. Soon testing procedures for the latest guidelines will be available; the hope is that products meeting the most recent standards will be on the market in 2024 or soon thereafter.
THE FUTURE: When HAVA was enacted, there were no such things as electronic pollbooks, ballot marking devices and statistically based post-election audits. Now those exist, as well as lots of other elections-related technologies. A few states have created certification programs for these newer technologies, and it is possible the EAC will set voluntary guidelines for them, should Congress someday extend the EAC’s mandate. For now, the EAC is conducting pilot projects on electronic poll books.
HAVA is noteworthy in that it not only mandated changes—it provided $3.2 billion in funding—and that money was frontloaded, an important detail for state policymakers. According to Hicks, for the 200 previous years, the federal government had been getting a “free ride,” with states running elections for Congress and the presidency for free.
HAVA funding came in two major programs (and several smaller ones), all administered by the EAC: One grant program is to make general improvements to federal election administration, and the other is for states to meet federal election administration requirements, especially equipment upgrades. Money from the general grants can be used to provide physical security and threat-monitoring for election officials, according to a newly released opinion from the Government Accountability Board. To get the second kind of grants, states had to choose voting technology that met the voluntary federal guidelines and provide matching funds.
In 2018, the final $380 million that was originally authorized was appropriated for the “general improvements” grant program, with encouragement that it be used for election security. In 2020, two outlays totaling $825 million were provided to help run elections during a pandemic, and in 2022, $75 million was appropriated.
Hicks points out this means all presidents in the 21st century have signed off on funding to support federal elections: Bush originally; Obama for the MOVE Act; and Presidents Trump and Biden for additional funding.
THE FUTURE: “Much of HAVA is still unrealized, but it has also provided modernization,” says McCormick. One of the unrealized portions would have given annual payments to the states. One thing she hears from election officials is that a steady flow of federal funding, rather than an occasional infusion, would make planning easier for states and counties. The question is: Would regular funding come through the usual EAC channels, in which case there are no regulatory strings attached? Or would there be new statutory language that would potentially change the current, and well-reasoned, approach? If Congress does open up HAVA again, they’ll need to hear what state legislators think now, 20 years after its original passage.
Which states have limited or prohibited private funds in elections?
NCSL answered this question in September 2021, but the answer has changed significantly in the past seven months. In 2021, 11 states enacted bills limiting or prohibiting the use of private or philanthropic funding to run elections. This year, seven more states have done so, bringing the total to 18. Private grants and contributions to help run elections—an issue unheard of before 2020—has now been banned in over one third of the states. That’s a trend.
Eleven states in 2021: Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas (the governor’s veto was overridden by the legislature), North Dakota, Ohio, Tennessee and Texas. Similar bills were vetoed in Louisiana, Michigan, North Carolina, Pennsylvania and Wisconsin.
Seven more states in 2022: Alabama, Kentucky, Mississippi, South Dakota, Virginia, Utah and West Virginia.
And with several states still in session, that number may inch up again before the year wraps up. See NCSL’s state election legislation database for bill status details.
For more information on the cost of elections, check out this April 2022 article on NCSL’s State Legislatures News: “Democracy is Priceless, But Elections Cost Big Bucks.”
Legislative Action Bulletin
As of May 1:
- Twenty-four states, D.C., Guam, Puerto Rico and the U.S. Virgin Islands are in regular session.
- Twenty states have adjourned.
- Two states—South Dakota and Virginia—are in special session.
- Four states—Montana, Nevada, North Dakota and Texas—do not convene in 2022.
So far, 34 states, D.C., and Guam have enacted 128 bills. Virginia leads with 16 enactments, followed by Idaho, Utah and West Virginia with 10 enactments each.
While last year’s enactments grabbed headlines for making notable changes to election administration, so far this year’s enactments are receiving less attention. Topics that stand out are assistance for voters with visual impairment or who live in long term care facilities, and providing voting information.
Here are a few of these enactments:
Arizona SB 1638 requires an accessible ballot option for blind or partially sighted voters who opt to vote early by mail.
Maine SB 647 establishes an alternative method of voting for residents of nursing homes and other licensed facilities, requiring clerks to conduct absentee voting on-site in for one day during the 30-day early voting period.
Utah SB 19 makes sample ballots available for inspection at least 45 days before an election.
Washington HB 1357 expands mailing of voter information pamphlets to any uniformed or overseas voter who requests one.
For comprehensive information on all of this year’s election legislation, including enactments, please visit NCSL’s state election legislation database.
News Worth Noting
South Carolina Early Voting Legislation Receives Bipartisan Support
House Bill 4919 received unanimous support from both House and Senate state lawmakers in South Carolina, setting the stage for what could be a significant expansion of early and absentee voting in the state. The legislation would establish two weeks of early voting and allow no-excuse absentee voting. Other provisions include a mandatory fixed-percentage post-election audit in each county and criminal penalties for double voting. Whether the governor will sign the bill is yet to be seen.
EAC Releases Election Official Personal Security Checklist
Amid unabating threats to, and harassment of, election officials around the country, the U.S. Election Assistance Commission has released a checklist for protecting election officials. From threat documentation to coordinating with law enforcement to monitoring security online, the checklist provides concrete tools and resources for election officials to report threats and stay safe.
Voting Access for the Next Generation
The Fair Elections Center’s new report, Democracy’s Future: Proposals to Expand Access to Registration and Voting for a New Generation, outlines strategies state can use to increase voter participation for young people. Approaches include pre-registration of 16- and 17-year-olds; on-campus voter registration and polling places; recruitment of students as poll workers; and permitting student IDs as an approved form of voter ID.
Congressional Research Service Weighs in on Voter List Maintenance
The Congressional Research Service is to Congress what NCSL is to legislatures: a trusted source for objective information on any topic a lawmaker might be interested in. Voter Registration Records and List Maintenance for Federal Elections gives nothing but the straight scoop on one of this year’s hottest topics.
What is a Risk-Limiting Audit?
NCSL has a webpage on that—but ours is by no means the only explainer. A report from Verified Voting, What is a Risk-Limiting Audit?, was released in March and adds to a growing body of reports on what was once an arcane topic. Check out the Knowing It’s Right series on risk-limiting audits for a deeper dive.
Addressing Paper Shortages Ahead of 2022 Elections
When it comes to elections, paper is paramount. Supply chain bottlenecks and paper shortages are causing anxiety among election administrators as state primaries get underway and midterm elections loom large. The EAC has several new resources to help election officials navigate supply constraints, along with recommendations on how to mitigate the impact of these challenges.
Winners of 2021 Clearinghouse Awards Announced
The U.S. Election Assistance Commission recently announced winners for the 2021 Clearinghouse or “Clearie” Awards. The awards recognize and celebrate localities across the U.S. for best practices in election administration. Categories include Outstanding Innovations in Large Elections; Improving Accessibility for Voters with Disabilities; and Best Practices in Recruiting, Retaining, and Training Poll Workers. And yes, there’s even a category dedicated to the beloved “I Voted” sticker. One of the awards for most Creative and Original “I Voted” Sticker Design went to North Carolina’s Durham County Board of Elections. Read the full list of winners here.
From the NCSL Elections Team
We are pleased to announce that registration for NCSL’s 2022 Legislative Summit in Denver is now open. Join us Aug. 1-3 for the country’s largest bipartisan gathering of state legislators and staff. This year, the elections team has a full slate of exciting sessions, including a session on reliable elections and a tour of Denver’s elections office, with more plans in the works.
—Mandy Zoch, Wendy Underhill and Saige Draeger