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, known as HAVA, which set operational requirements and provided funding for federal elections.
Twenty 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 Election Center, an association of election officials. Lewis, who is now retired, 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?’”
"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." —Doug Lewis, former executive director of The Election Center
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,” Lewis says. The broad base proved important: Members of Congress and their 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,” Lewis says. “Once Congress found out that 95% of election administration has nothing to do with politics, that worked out really well.”
To assist states in complying with the new law and to distribute funds to the states, HAVA also established the Election Assistance Commission, 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.) The EAC, which is led by two Democrats and two Republicans, serves as a clearinghouse for election information. Although election officials are the commission’s primary audience, state legislators can and do use it, too.
“No one loved all of HAVA, but it was something people could deal with,” says EAC Chairman Thomas Hicks, a Democrat. “People thought, ‘I’m not getting everything I want, you’re not getting all you want, but it truly made the process better.’”
The commission’s vice chair, Republican Christy McCormick, says HAVA “has been a very successful bill for a lot of reasons. 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.
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.
Administrative Requirements
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 at polling places but aren’t in the voter rolls. The affidavit on the exterior of the provisional ballot’s envelope is reviewed after the polls close to see if the voter was indeed eligible—and therefore whether the ballot can be counted.
- Every polling place nation was required to have equipment for people with disabilities to vote independently and privately. (This change and others made HAVA “the fastest piece of civil rights legislation ever passed,” Hicks says.)
- 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 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 a minimum amount 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 fund 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. Postelection audits, voter ID for all voters, cross-checking 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 doesn’t preempt states’ rights to establish elections policies.
Elections Equipment
HAVA tasked the EAC with 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, or VVSG. The goal of the 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,” McCormick says. “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.”
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. Testing procedures for the latest guidelines will be available soon; the hope is that products meeting the most recent standards will be on the market in 2024 or shortly thereafter.
The future: When HAVA was enacted, electronic pollbooks, ballot marking devices and statistically based postelection audits didn’t exist. They do now, along with lots of other election-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 commission’s mandate. For now, the EAC is conducting pilot projects on electronic poll books.
Funding
HAVA is noteworthy in that it not only mandated changes but also provided $3.2 billion in funding—and that money was front-loaded, 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 covering the costs of running elections for Congress and the presidency.
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; 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, 380 million 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 funds to support federal elections: George W. Bush originally; Barack Obama with the MOVE Act; and Donald Trump and Joe Biden providing additional funding.
The future: “Much of HAVA is still unrealized, but it has also provided modernization,” McCormick, the Republican EAC vice chair, says. One of the unrealized portions would have given annual payments to the states. One thing McCormick 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 new statutory language potentially change the current, well-reasoned approach? If Congress does open up HAVA again, it will need to hear what state legislators think now, 20 years after the law’s passage.
Wendy Underhill directs NCSL’s Elections and Redistricting Program.