Election Reform: Issues and Legislative Proposals in the 109th Congress
Election Reform: Issues and Legislative
th
Proposals in the 109 Congress
Updated February 28, 2007
Eric A. Fischer
Senior Specialist in Science and Technology
Resources, Science, and Industry Division
Kevin J. Coleman
Analyst in American National Government
Government and Finance Division
Election Reform: Issues and Legislative Proposals
in the 109th Congress
Summary
Despite the passage of the Help America Vote Act (P.L. 107-252) in 2002, many
election-reform issues have continued to arise in conjunction with subsequent federal
elections. Attempts to address those issues legislatively took form in many bills
introduced in recent Congresses, particularly the 109th. Some of those bills
responded specifically to issues that arose from the passage of HAVA. Others
responded to events, especially problems that occurred during the 2004 federal
election and as a result of the hurricanes of 2005. Still others addressed longstanding
election-reform issues. Some were very specifically targeted to a particular issue,
whereas others were more comprehensive, focusing on several issues. The various
approaches taken by those bills may be used in legislation considered by the 110th
Congress. The issues addressed included the following:
!concerns about conflict of interest and political activity among
voting system vendors and among election officials,
!voting rights of convicted persons,
!election crimes,
!the use of deceptive practices relating to voting by political
operatives or others,
!voting rights in the District of Columbia and other areas other than
the 50 states,
!early and absentee voting,
!authorization and authority of the Election Assistance Commission,
!the Electoral College,
!enforcement of HAVA requirements,
!voter error,
!election holiday,
!voter identification,
!voter information,
!alternative language requirements,
!voting leave for employees on election day,
!access to polling places by observers,
!payments to states,
!proportional representation and instant-runoff voting,
!the use of provisional ballots,
!the provisioning of voting machines to polling places,
!redistricting procedures,
!state laws on election administration,
!election statistics,
!the level of training given to pollworkers,
!security of electronic voting systems and verifiability of ballots, and
!voter-registration requirements.
In addition to appropriations, two bills with election-related provisions were
enacted: reauthorization of the Voting Rights Act (P.L. 109-246), and defense
reauthorization (P.L. 109-364). This report will not be updated.
Contents
Issues ...........................................................2
Absentee and Mail Voting ......................................2
Accessibility of Voting Systems and Polling Places
for Persons with Disabilities.................................4
Alternative Language Requirements ...............................5
Conflicts of Interest ............................................5
Early Voting .................................................6
Election Assistance Commission (EAC) ...........................7
Election Crimes ...............................................7
Election-Day Holiday/Date Change................................8
Election Statistics..............................................9
Electoral College.............................................10
Enforcement of HAVA Requirements ............................10
Extension of Voting Rights to Residents in Areas
Other Than the 50 States ...................................11
HAVA Deadlines ............................................11
Hurricane Response...........................................12
Military and Overseas Voters....................................13
Observers at the Polling Place Or Counting Location.................13
Payments to States............................................14
Political Activities of Election Officials...........................15
Polling-Place Capacity.........................................15
Pollworker Training ..........................................16
Proportional Representation and Instant-Runoff Voting...............17
Provisional Ballots ...........................................17
Recounts ....................................................19
Redistricting and Apportionment.................................20
Restoration of Voting Rights to Convicted Persons..................21
Security of Voting Systems and Procedures ........................22
State Laws on Election Administration............................26
Voter Error..................................................26
Voter Identification...........................................27
Voting Leave for Employees on Election Day.......................28
Voting Machine Error .........................................29
Voter Registration............................................29
Voter Verification............................................33
Bills Introduced in the 109th Congress.................................34
Election Reform: Issues and Legislative
th
Proposals in the 109 Congress
Despite the passage of the Help America Vote Act (P.L. 107-252) in 2002, many
election-reform issues have continued to arise in conjunction with subsequent federal
elections. Attempts to address those issues legislatively have taken form in many
bills introduced in recent Congresses. Some bills were introduced specifically in
response to issues raised in consequence of the passage of HAVA. Others were
introduced in response to events, especially problems that occurred during the 2004
federal election and as a result of Hurricane Katrina in August 2005. Still others
addressed longstanding election-reform issues. Some were very specifically targeted
to a particular issue, whereas others were more comprehensive, focusing on several
issues.
This report discusses the range of election issues covered by various legislative
proposals in the 109th Congress, and the various approaches taken by those bills.
Bills introduced in the 110th Congress will be covered elsewhere. The purpose of this
report is not only to provide a history of legislative activity on election reform, but
more importantly, to provide information that may be useful in deliberations on those
issues in the 110th Congress.
While HAVA appears generally to have been well-received by both election
officials and the public,1 some provisions have been controversial, especially the
following:
Accessibility of voting systems. Section 301(a)(3) of HAVA requires that each
polling place have at least one fully accessible voting system, beginning in 2006.
Some observers believe that this requirement is excessive and exceptions should be
made for jurisdictions with low population, such as rural areas and small towns,
where voters are well-known to election officials. Proponents counter that the high
and increasing mobility of the U.S. population, and the problem of the “hidden”
disabled, make accessibility essential for full enfranchisement. No bills were
introduced in the 109th Congress that addressed this issue.
That is not the case with the other major controversy relating to accessibility.
Sec. 301(a)(3) promotes the use of direct recording electronic (DRE) voting
machines. They are widely recognized as the most accessible kind of voting system.
However, they have been criticized as being insufficiently secure in comparison to
paper-based systems, and several bills would have required that they produce paper
ballots.
1 See, for example, CRS Report RL32938, What Do Local Election Officials Think about
Election Reform?: Results of a Survey, by Eric A. Fischer and Kevin J. Coleman.
Provisional voting. Sec. 302(a) requires that any person be permitted to fill out
and submit a provisional ballot at a polling place, if the person claims to be a
registered, eligible voter in the jurisdiction but is not so considered by election
officials at the polling place. It went into effect in 2004. While some concerns have
been raised about difficulty of implementation, the major controversy with respect
to this provision has been with respect to the criteria for counting provisional ballots
— in particular, whether a ballot should be counted if cast in a polling place other
than that at which the voter is registered. Several bills were introduced that would
have addressed this controversy.
Among other issues that arose in conjunction with recent federal elections and
which were addressed by proposed legislation were
!concerns about political activity and conflict of interest among
voting system vendors and among election officials,
!the use of deceptive practices relating to voting by political
operatives or others,
!enforcement of HAVA requirements,
!access to polling places by observers,
!the provisioning of voting machines to polling places,
!the level of training given to pollworkers,
!voting rights of convicted persons,
!various aspects of voting-system security,
!voter identification, and
!voter-registration requirements.
Other issues addressed by one or more bills included absentee and early voting,
alternative language requirements, authorization of and budget submission by the
Election Assistance Commission (EAC), election crimes, the date on which elections
are held and whether or not election day should be a holiday, the gathering and
reporting of statistics relating to elections, the workings of the Electoral College,
extension of voting rights to residents in areas other than the 50 states, extension of
HAVA deadlines, HAVA payments to states, proportional representation and instant-
runoff voting, redistricting procedures, state laws on election administration, voter
error, voter information, and voting leave for employees on election day. Unless
otherwise indicated, provisions of bills discussed in this report refer only to federal
elections.
Issues
Absentee and Mail Voting
Absentee voting has been steadily increasing in the United States for many
years. It is rapidly becoming the standard form of voting on the west coast. Oregon
now conducts its elections by mail, and in Washington state, most ballots are now
cast absentee. In California, the percentage of ballots cast absentee has steadily
increased for many years, climbing to about one-third of all ballots in 2004. In
addition to California, Oregon, and Washington, an additional 25 states permit “no-
excuse” absentee voting, which means that any voter can request an absentee ballot
without needing to provide a reason for the request.2 Several states permit registering
as a permanent absentee voter.
Under the Uniformed and Overseas Citizens Absentee Voting Act of 1986
(UOCAVA, P.L. 99-410), all persons serving in the military, their spouses and
dependents, and U.S. citizens living abroad are eligible to vote absentee in federal
elections. Versions of the law date to World War II. The various state laws and
UOCAVA illustrate the trend toward making absentee voting available to larger
numbers of voters, either for reasons of convenience or to secure the franchise for
eligible voters whose circumstances preclude voting in person. Critics of this trend
cite concerns about the possibility of fraud, as none of the safeguards of the polling
place exist. In the polling place, each vote is cast in private, it cannot be connected
with the person who cast it, and the voter cannot be easily bribed or coerced. Those
safeguards cannot be guaranteed for absentee balloting or some other types of remote
voting,3 and many election officials resist the trend toward no-excuse absentee voting
for this reason.
Despite those trends and concerns, there is little in HAVA that relates to
absentee voting. Sec. 246 requires the EAC to conduct a study on postage-free
absentee voting, and §303(b) requires first time registrants who vote by mail to
include a specified form of identification with their ballots, but most HAVA
absentee-voting provisions pertain to military and overseas voters.
Seven bills would have solidified the trend toward increasing absentee voting
by eliminating restrictions on it, requiring states to permit any eligible voter to vote
absentee (H.R. 533, H.R. 939, H.R. 1835, H.R. 3557, H.R. 4141, S. 17, and S. 450).
Three of those (H.R. 533, H.R. 4141, and S. 17) would have permitted the use of a
national federal write-in absentee ballot to be developed by the EAC.
Other bills had more limited provisions on absentee voting (see also the section
on hurricane response below). H.R. 2104 required jurisdictions to accept absentee
ballots sent by mail with insufficient postage. H.R. 2250 required the EAC to
establish mandatory standards for prevention of fraud and abuse in the handling of
absentee ballots. H.R. 3094 required the EAC to establish best practice guidelines
for treatment of absentee ballots of military and overseas voters. S. 414 required that
voter rolls at polling places indicate which voters have requested or submitted an
absentee ballot. It also required that, except as provided for in UOCAVA, absentee
ballots can be counted only if received by the close of business on election day. H.R.
2 These states are Alaska, Arizona, Colorado, Florida, Georgia, Hawaii, Idaho, Iowa,
Kansas, Maine, Maryland, Montana, Nebraska, Nevada, New Jersey, New Mexico, North
Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Utah, Vermont, Wisconsin, and
Wyoming.
3 As used in this report, the term remote voting refers to any type of voting other than in
person in the home precinct on election day. Other major types of remote voting include
early voting (see below) and Internet voting (which is rarely used in federal elections — see
CRS Report RS20639, Internet Voting, by Kevin J. Coleman).
absentee ballots to be accepted for at least 10 days following the election. S. 4018
would have established a grant program to assist states in replacing polling-place
voting with vote-by-mail, delineated required procedures, and required the EAC to
develop best practices and provide technical assistance. It also required GAO to
evaluate implementation.
Accessibility of Voting Systems and
Polling Places for Persons with Disabilities
HAVA requires that voting systems “be accessible for individuals with
disabilities, including nonvisual accessibility for the blind and visually impaired, in
a manner that provides the same opportunity for access and participation (including
privacy and independence) as for other voters” (§301(a)(3)). It requires that there be
at least one accessible system in each polling place starting in 2006, and that any
voting systems purchased with HAVA title II funds starting in 2007 be fully
accessible. It further states that properly equipped DREs will meet the accessibility
requirement.
DREs can provide improved accessibility in several ways. They include
magnified ballots for the vision-impaired; audio ballots for blind voters and,
potentially, voters whose primary language is unwritten, or English speakers with
substantial reading difficulty; and special interfaces for physically challenged voters.
However, DREs have also been controversial because of concerns about security and
reliability in recording and counting votes. As a result, some observers have
proposed that alternatives to DREs be used to address accessibility needs. Some
argue that paper-based systems can be made sufficiently accessible, either
electronically or mechanically. Others believe that making those systems accessible
is not currently feasible and that any risks associated with the use of DREs can be
addressed through administrative measures (see also the sections on security of
voting systems and on voter verification below).
Three bills required that HAVA accessibility requirements be met through use
of modular voting architecture, in which different voting functions, such as
generating and casting votes, are performed by separate devices.4 H.R. 550 required
that voting systems used for disability access separate the functions of vote
generation, vote verification, and vote casting if the system is strictly electronic; and
allowed the voter to verify and cast the ballot on paper or another medium privately
and independently in an accessible manner. H.R. 939 and S. 450 required that at
least one voting system per polling place provide opportunity for inspection and
verification of the ballot for disabled voters and language minorities by separating the
vote generation and vote-casting functions, and produce a paper record available for
visual, audio, and pictorial verification. Both bills required states to instruct election
4 See Caltech/MIT Voting Technology Project, Voting: What Is, What Could Be, July 2001;
CRS Report RL32139, Election Reform and Electronic Voting Systems (DREs): Analysis
of Security Issues. An optical scan voting system separates vote generation (marking the
ballot) from vote casting (running the ballot through the optical-scan reader), and some
voting systems have been developed that can mark optical-scan ballots using a DRE-like
interface, including audio capability for visually-impaired voters.
officials on the right of persons with disabilities to receive assistance, and both
required the EAC to develop best practices for voter-verification for persons with
disabilities.
Alternative Language Requirements
HAVA requires that voting systems provide alternative-language accessibility,
pursuant to the requirements of the Voting Rights Act of 1965 (VRA, 42 U.S.C.
1973aa-1a). Despite the reauthorization of the VRA (see Garrine P. Laney, The
Voting Rights Act of 1965, As Amended: Its History and Current Issues, CRS Report
95-896), the alternative-language requirements may be an issue. Those requirements
provide that jurisdictions with sufficiently large populations of non-English-
proficient citizens be provided voting materials in their native language(s) (42 U.S.C.
1973aa-1a). H.R. 9 (now P.L 109-246) reauthorized this provision until 2032, and
S. 2703 contained a similar provision. H.R. 550 would have required the EAC to
develop best practices for voter-verification for persons with languages other than
English. H.R. 997 required that official government functions be conducted in
English. H.R. 4408 and S. 3828 would have eliminated the Voting Rights Act
requirements to provide ballots and other voting materials and information in
languages other than English.
Conflicts of Interest
One controversy preceding the 2004 federal election followed a statement by the
then-chairman and CEO of Diebold Corporation, one of the major manufacturers of
DREs and optical scan systems. Walden O’Dell, in a 2003 fund-raising letter,
reportedly stated his commitment to delivering Ohio for President Bush in the 20045
election. This led some Democratic activists to publicly voice concerns about a
partisan conflict of interest on the part of Diebold. Concerns about such conflicts
have been voiced by some election-reform advocates for years. The concerns have
not been limited to potential partisan bias, but have also included business
relationships among vendors, election officials, and testing laboratories. Some
advocates have argued for standards and other controls over such potential conflicts
of interest, while others have proposed use of government or nonprofit laboratories
for certification, with some even proposing federalization of voting-system design6
and manufacturing, as occurs in some other countries. However, others believe that
such concerns are unwarranted and that no additional measures are needed to control
conflict of interest.
Several bills would have addressed potential conflicts by manufacturers and
laboratories. H.R. 470 would have modified §231(b) of HAVA to require the EAC
to establish standards regarding conflicts of interest by laboratories that certify voting
systems. H.R. 550 and H.R. 3094 required both certification laboratories and
manufacturers to meet EAC conflict-of-interest standards, with the latter specifically
5 Melanie Warner, “Machine Politics In the Digital Age,” New York Times, November 9,
6 Among the most notable examples are India and Brazil.
including software manufacturers and prohibiting partisan political activities by
manufacturers. H.R. 470 and H.R. 3094 prohibited accreditation of laboratories not
meeting those standards. H.R. 533 prohibited conflict of interest more broadly —
including any entities involved with voting machines — under EAC standards. It
also required the EAC to study the feasibility and desirability of conducting elections
through nonpartisan election boards. H.R. 939 and S. 450 more narrowly prohibited
officers of voting system companies from taking part in prohibited political activities,
as defined in the bill, in any election for which a voting system produced by the
manufacturer is used.
See also the section on political activities of election officials below.
Early Voting
Early voting usually refers to the practice in which election jurisdictions permit
voting in a polling place before election day. While absentee voting is a form of
early voting, the former involves ballots cast via mail, rather than in person, and the
two are usually treated separately (see the section on absentee and mail voting
above). Texas first implemented a limited version of early voting in 1963. There are
many approaches to early voting, and the number of states using it is growing.
According to the National Conference of State Legislatures, 23 states had some form
of early voting in 2004, whereas only 13 states offered it in 2000. In some states, a
voter can cast a ballot at any of several locations in the jurisdiction before election
day, while in other states, the voter must visit the election official’s office to do so.
The days and hours for voting vary as well.
Some observers have criticized early voting as distorting to the electoral process
and being open to certain kinds of fraud and abuse. One disadvantage concerns
developments or issues in a campaign occurring after early voters have cast their
ballots. Also, as with other forms of remote voting, a greater risk of fraud arguably
exists. Proponents state in contrast that early voting can increase turnout and lessen
the risk of certain kinds of distortions, such as undue impact from late-occurring
events. In Maryland, for example, the legislature approved early voting for 2006
over the Governor’s veto, but the law was rejected by a Court of Appeals ruling on7
August 25. Objections raised in court included the assertion that it would require
amending the Constitution, which guarantees voting in one’s ward or election district
on election day. Maryland’s version of early voting would have made balloting
available before the election at a limited number of places in each county. Despite
such controversies, the recent increase in the number of states offering early voting
suggests that the trend will continue.
H.R. 533, H.R. 939, H.R. 3557, S. 17, S. 450 would have required states to
implement early voting and for the EAC to establish standards for it. H.R. 2104
required states to permit local jurisdictions to allow early voting should they wish to
do so. S. 414 required that voter rolls at polling places indicate which voters have
voted prior to election day.
7 Tom Stuckey, “Maryland court overturns early voting law,” Associated Press, Aug. 26,
Election Assistance Commission (EAC)
HAVA did not provide the EAC with regulatory authority and authorized
funding for it only through FY2005.8 It requires the National Institute of Standards
and Technology (NIST) to provide some technical guidance to the EAC but did not
authorize any funding for that purpose. Some have called for the EAC to be
abolished after distribution of HAVA payments is completed, with responsibilities
for voting system guidelines and certification of testing laboratories transferred to
NIST. Others, however, believe that the EAC should have rulemaking authority,
higher funding, and greater budgetary independence from the executive branch.
Five bills would have provided indefinite funding authorization to the EAC.
H.R. 550 provided permanent authorization but did not specify a funding level. H.R.
533 and S. 17 authorized $23 million, and H.R. 939 and S. 450 $35 million, for
FY2006 and sums necessary thereafter. These four bills would have exempted the
EAC from requirements of the Paperwork Reduction Act and required concurrent
transmission of EAC budget estimates or requests to the White House and Congress,
as did H.R. 3094. They also required NIST to provide technical support to the EAC,
with the latter two also allocating $4 million of the FY2006 appropriation for that
purpose. H.R. 939 and S. 450 also would have authorized, for FY2006 — 10, an
additional $20 million to the EAC for recounts, voter-verification systems, and
security (see those sections below for details).
H.R. 939 and S. 450 would have repealed the HAVA prohibition on rulemaking
by the EAC, and H.R. 533 and S. 17 provided the commission with rulemaking
authority relating to requirements and standards added by the bill.
H.R. 550, H.R. 939, and S. 450 would have repealed the EAC’s exemption
from the advertising requirements of 41 U.S.C. 5 with respect to contracting and
compensation for supplies and services.
Election Crimes
Elections are often accompanied by reports of deceptive acts by some partisans
or other parties, including such things as selective discarding of voter registration
applications and misinforming voters about date and location of an election and
eligibility of voters. Federal law currently prohibits intimidation of voters (18 USC
594, 42 USC 1973i(b)) and providing false information in voter registration (42 USC
1973i(c), 15544), among other activities, but does not expressly forbid acts such as
those listed above. However, some states have expressly made some of those
practices illegal.9
8 The EAC did, however, receive $14.2 million in funding for FY2006 (P.L. 109-115).
9 For example, Kansas law prohibits “…knowingly: (1) Destroying any application for voter
registration signed by a person pursuant to K.S.A. 25-2309, and amendments thereto, (2)
obstructing the delivery of any such signed application to the county election officer or the
chief state election official, or (3) failing to deliver any such application to the appropriate
county election officer or the chief state election official as required by law” (K.S.A. 25-
(continued...)
H.R. 533 prohibited unfair and deceptive acts and practices, as identified by the
U.S. Attorney General, that would affect voting in federal elections, and provided for
civil and criminal penalties and a private right of civil action by victims; it required
the Attorney General to establish procedures for tracking and documenting voter
irregularities. H.R. 939, H.R. 3094, H.R. 4463, S. 450, S. 1975, and S. 4069
prohibited deception regarding the time, place, or manner of conducting an election,
or voter eligibility, with S. 4069 also prohibiting deception about party affiliation of
candidates and sponsors of campaign communications. All provided criminal penalty
for violations, with H.R. 4463, S. 1975, and S. 4069 also providing a private right
of civil action by victims and requiring the Attorney General to respond to reports of
irregularities, to establish regulations on corrective actions, and to report allegations
to Congress. S. 414 made destruction of property with the intent of preventing or
impeding a person from voting a criminal act. S. 4034 made it a federal crime to
tamper with a voting system or ballots and provided a private right of action for
affected persons.
Accusations relating to vote-buying are also not uncommon. Federal law
currently prohibits vote-buying and -selling (18 U.S.C. 597). S. 414 would have
expanded this prohibition by making conspiring to buy votes a criminal act.
See also the section on voter registration below.
Election-Day Holiday/Date Change
In some countries, elections are held on days when businesses are closed, either
by holiday or by holding the election on a weekend. Some observers advocate such
an approach in the United States, arguing that it will increase turnout and improve
the availability of qualified pollworkers. Opponents argue that there is no evidence
for those assertions, and that alternatives such as early and “no-excuse” absentee
voting already exist to accommodate voters who have difficulty getting to polls on
election day. HAVA requires the EAC to perform a study on the “feasibility and
advisability” of an election-day holiday and other alternatives (Sec. 241(B)(10)), but
it is silent on the timing of that study.
H.R. 533, H.R. 939, and S. 17 specified a deadline of six months after
enactment for the EAC report on establishing an election-day holiday. H.R. 3557,
H.R. 6200, and S. 450 would have made election day a federal holiday, as did H.R.
63 and S. 1130, which also required a GAO study of the impact of the change on
voter participation. H.R. 1647 and S. 144 would have changed election day to the
first consecutive Saturday and Sunday in November, with the latter also specifying
polling-place hours.
Election Statistics
9 (...continued)
2421a); and “mailing, publishing, broadcasting, telephoning or transmitting by any means
false information intended to keep one or more voters from casting a ballot or applying for
or returning an advance voting ballot” (K.S.A. 25-2415).
One common complaint among advocates of improved election administration
is the lack of consistent and reliable data across states relating to various aspects of
the conduct of elections. States vary substantially in the data they collect and make
publicly available. For example, some jurisdictions, when reporting election results,
release only the number of votes for each candidate. That makes it impossible to
determine how many voters failed to cast valid votes for a given office (these are
known as “residual votes”10). HAVA requires the EAC to serve as a “a national
clearinghouse and resource for the compilation of information and review of
procedures with respect to the administration of Federal elections” (Sec. 202), but
does not in general require the EAC to collect or the states to provide specific
information in that regard.11 The EAC has developed an election-day survey that it
first administered for the 2004 federal election.12 This instrument, as well as other
EAC surveys,13 could potentially provide a basis for standardization of data collected
by state and local jurisdictions for future elections.
H.R. 939 and S. 450 required each state and jurisdiction to report specified
election data — on voters, ballots, polling places, and voting machines — to the EAC
within six months after the election, and for the EAC to report on the election to
Congress within nine months after the election.
Electoral College
Presidential elections are decided under what is called the electoral college
system. Proposals to reform the system are not uncommon, especially after close
elections, and several reform bills have been introduced in the 109th Congress. For
10 The number of residual votes for a given contest is the number of ballots cast that do not
record a valid vote for that contest. A ballot may be uncounted because it does not indicate
a choice (this is called an undervote), indicates more choices than allowed (overvote — for
example, votes for two or more presidential candidates), or is otherwise spoiled (for
example, contains marks that might permit identification of the voter). “Drop-off” and “roll-
off” are related terms.
11 HAVA does require the EAC to conduct a survey on the possibility of establishing a free
absentee ballot postage program (Sec. 246). It also requires election jurisdictions to report
to the EAC the number of ballots sent to, returned from, and cast by absent uniformed-
services and overseas voters, and for the EAC to make the results public (Sec. 703). States
are also required to submit statistics on voter registration to the EAC under regulations (11
C.F.R. 8) issued pursuant to Sec. 9(a) of the National Voter Registration Act of 1993 (P.L.
12 Election Assistance Commission, Final Report of the 2004 Election Day Survey, report
prepared by Election Data Services, September 7, 2005, [http://www.eac.gov/
election_surve y_2004/intro.htm] .
13 These include surveys relating to the Uniformed Overseas and Overseas Citizens Absentee
Voters Act of 1986 (UOCAVA — see Kevin J. Coleman, The Uniformed and Overseas
Citizens Absentee Voting Act: Background and Issues, CRS Report RS20764) and the
National Voter Registration Act (NVRA — see Government and Finance Division, The
National Voter Registration Act of 1993: History, Implementation, and Effects, CRS Report
RL31105).
in-depth discussion of reform proposals, see CRS Report RL32831, The Electoral
College: Reform Proposals in the 109th Congress, by Thomas H. Neale.
H.R. 939 and S. 450 would have required that certificates of ascertainment14 of
electors be sent by overnight courier at least six days before the electors are to meet.
H.R. 1579 would have changed the date for the meeting of electors from mid-
December to January 2, with any disputes resolved no later than three days prior to
that date, and required that certificates of ascertainment and votes of electors be sent
by the most expeditious method available, to arrive within two days after the
meeting.
H.J.Res. 8, H.J.Res. 17, H.J.Res. 36, H.J.Res. 50, and S.J.Res. 11 would have
abolished the Electoral College and provided for direct popular election of the
President and Vice President. H.J.Res. 17 additionally provided for a run-off
election if no candidate received 40% or more of the vote total, and H.J.Res. 36
would have limited direct election to cases where the winner receives a majority of
votes cast.
Enforcement of HAVA Requirements
One of the more contentious issues in the debate over HAVA was over methods
to enforce compliance with the act’s requirements. As enacted, HAVA provides two
methods: The U.S. Attorney General may bring civil action to enforce compliance
(§ 401), and each state is required to establish grievance procedures (§ 402). There
has been some debate over whether current law provides individuals with the right
of federal court action in response to alleged violations. A ruling in one case before
the 2004 federal election affirmed such a right,15 but whether it would be upheld in
other cases is not settled.
H.R. 470 would have required that polling places have a posted notice of the
state administrative complaint procedures required by HAVA, and limited eligibility
for filing complaints about voting machines to those voters eligible to use them.
H.R. 550 would have permitted individuals to file complaints with and required
response from the U.S. Attorney General about violations of HAVA requirements.
It provided a private right of action to enforce those requirements. H.R. 2250
required the Attorney General to initiate investigations of voting irregularities within
30 days of receiving a complaint accompanied by evidence and to notify the chief
state election officer of the status of the investigation every 60 days until completed.
It did not affect state investigations if they did not interfere with or impede federal
ones. It also provided the EAC with authority to conduct audits for compliance with
the provisions in the bill and impose penalties for violations.
Extension of Voting Rights to Residents in
Areas Other Than the 50 States
14 These list the names of the electors and the number of votes each received and are sent
to the National Archives (3 USC 6).
15 Sandusky County Democratic Party v. Blackwell, 386 F.3d 815 (6th Cir. 2004).
Only U.S. citizens from the 50 states and the District of Columbia are eligible
to vote in presidential elections. Those from commonwealths and territories cannot
do so. Furthermore, none of the latter have voting representatives in Congress, and
that restriction also applies to the District of Columbia. Proposals to extend such
rights may take various forms, and several bills were introduced in the 109th
Congress.16
H.J.Res. 1, H.J.Res. 17 would have extended voting rights for President and
Vice President to residents of commonwealths and territories. H.R. 190 would have
made residents of the District of Columbia residents of the state of Maryland for
purposes of congressional and presidential elections. H.R. 398, H.R. 5410, and S.
195 would have required that the District of Columbia be treated as a state for
purposes of congressional elections. H.R. 2043 and H.R. 5388 required that it be
treated as a state for purposes of representation in the House of Representatives only,
and added, until reapportionment after the 2010 census, one representative for the
District and one for one other state to be named. H.R. 873 provided for a nonvoting
delegate to the House of Representatives for the Commonwealth of the Northern
Mariana Islands.
HAVA Deadlines
HAVA contains three sets of January 1 deadlines for state and local jurisdictions
to comply with the requirements in the act:
!2004: provisional voting, voter information, and voter identification17
requirements. While some concerns were raised about compliance
with these requirements in conjunction with the 2004 federal
election, especially with respect to provisional voting (see below),
in general implementation appears to have been successful.
!2006: replacement of punchcard and lever machine voting systems
for states participating in the replacement program (with waiver),
statewide computerized voter registration list (with waiver), voting
system requirements (including at least one fully accessible voting
station per polling place). The ability of state and local jurisdictions
to meet the deadline for these requirements has raised concerns
among some. In particular, The requirement for computerized
statewide registration list appears to be a problem in some states (see
below) and some states may also have not yet completed
replacement of voting systems. In addition, the EAC has concluded
that lever machines cannot meet HAVA’s auditability requirements,
16 For more detail, see CRS Report RL32933, Political Status of Puerto Rico: Background,
Options, and Issues in the 109th Congress, by Keith Bea, and CRS Report RL32340,
Territorial Delegates to the U.S. Congress: Current Issues and Historical Background, by
Betsy Palmer.
17 This requirement went into effect with respect to individuals on January 1, 2003 (§
which implies that jurisdictions could not simply return title I funds
rather than replacing their lever machines.18
!2007: additional voting system requirement of full accessibility for
all systems purchased with funds made available under title II after
this date. This requirement appears to be dependent on additional
appropriations for requirements payments under HAVA. Congress
last appropriated such funds in FY2004.
H.R. 3163 would have delayed each of the above deadlines, except the last, for
four years. H.R. 4666 would have extended the deadline for replacement of
punchcard and lever machine systems to November 2006.
Hurricane Response
The aftermath of Hurricanes Katrina and Rita created challenging conditions for
the people of Alabama, Louisiana, Mississippi, and Texas, as well as for state and
local governments there. Some problems were immediately apparent, while others,
such as conducting elections, were less obvious at first. To varying degrees, states
struggled to locate hundreds of thousands of displaced voters, replace damaged
voting equipment and find alternative polling places, and recruit poll workers to
replace those who were displaced by the storms. In some cases, HAVA funds
intended to meet the law’s requirements were needed for recovery efforts, which
might potentially affect achieving compliance. For more detail, see CRS Report
RS22436, Elections in States Affected by Hurricanes Katrina and Rita, by Kevin J.
Coleman and Eric A. Fischer.
Three bills (H.R. 3734, H.R. 4197, and S. 1867) provided for displaced victims
of Hurricane Katrina to be eligible to vote under provisions of the Uniformed and
Overseas Citizens Absentee Voting Act (UOCAVA, 42 USC 1973ff) in federal
elections from 2006 to 2008.
H.R. 4197 would have authorized $50 million in FY2006 for EAC grants to
states to replace equipment and supplies damaged as a result of Hurricane Katrina.
H.R. 4140 was similar but also applied to damage resulting from Hurricane Rita. S.
18 Election Assistance Commission, “EAC Advisory 2005-005: Lever Voting Machines and
HAVA Section 301(a),” September 8, 2005, available at [http://www.eac.gov/docs/EAC%
20Advisory%2005-005.pdf]. The advisory states, “lever voting systems have significant
barriers which make compliance with Section 301(a) difficult and unlikely.”
Military and Overseas Voters
Continuing efforts to facilitate absentee voting and registration for military and
overseas voters resulted in a number of incremental adjustments to the Uniformed
and Overseas Citizens Absentee Voting Act (UOCAVA, P.L. 99-410) in recent years.
The National Defense Authorization Act of 2002 amended UOCAVA to permit a
voter to submit a single absentee application in order to receive an absentee ballot for
each federal election in the state during the year. HAVA subsequently amended that
section of the law to extend the period covered by a single absentee ballot application
to the next two regularly scheduled general elections for federal office, and added a
new section that prohibits a state from refusing to accept a valid voter registration
application on the grounds that it was submitted prior to the first date on which the
state processes applications for the year. Because of inherent difficulties that result
from the need to vote absentee from outside the United States and the timing of ballot
availability, efforts to increase the efficiency of UOCAVA’s performance are likely
to continue.
S. 2507, S. 2766, S. 2767, and H.R. 5122 (P.L. 109-364) included provisions
on military and overseas voting. H.R. 5122 continued the Interim Voting Assistance
System (IVAS) for military voters and employees of the Department of Defense
through the 2006 elections and requires GAO reports on IVAS and other efforts to
utilize electronic mail, facsimile transmission, and the Internet to facilitate
registration and voting for military and overseas voters. S. 2766 and S. 2767 required
similar reports, and all four bills eliminated inspections of voting assistance
installations by the inspector general.
Observers at the Polling Place Or Counting Location
The 2004 federal election saw an unusually large number of observers,19
including some from the Organization for Security and Co-Operation in Europe
(OSCE) who had been invited by the U.S. State Department.20 State laws on
observers and policies of election jurisdictions vary, with some restricting observers
in various ways. Some observers have proposed that steps be taken to ensure access
of nonpartisan domestic and international observers to elections.21 Opponents
believe that decisions about access should be left to state or local jurisdictions, given
perceived variations in need and risks that the presence of such observers could place
undue strain on polling place operations.
19 electionline.org, The 2004 Election, December 2004, available at
[ h t t p : / / www.e l e c t i onl i n e .or g] .
20 Organization for Security and Co-Operation in Europe, United States of America, 2
November 2004 Elections, OSCE/ODIHR Election Observation Mission Final Report,
March 31, 2005, [http://www.osce.org/documents/odihr/2005/03/13658_en.pdf].
21 In addition to OSCE, the Carter-Baker Commission (Commission on Federal Election
Reform, Building Confidence in U.S. Elections, September 2005, available at
[http://www.american.edu/ia/cfer]) and the National Association of Secretaries of State
(resolutions of July 24, 2005, available at [http://www.nass.org/electioninfo/
electioninfo.html]) have recommended greater access.
H.R. 533 and S. 17 would have required states to allow access to polling places
for specified classes of observers, and H.R. 939 and S. 450 for nonpartisan observers.
H.R. 3910 required states to permit parties with candidates in an election to observe
vote tabulation and certification.
Payments to States22
HAVA authorized $3 billion for FY2003 — 5 in payments to states to meet the
requirements of title 3, and $650 million in one-time payments for replacing voting
equipment and improving election administration. Of those amounts, all but $672
million in requirements payments have been appropriated, and all appropriated funds
have been disbursed to the states.23 Some observers have expressed concerns that the
amount of funding appropriated so far is insufficient to meet HAVA requirements,
with some arguing that the remaining authorized amount is also insufficient. Some
additionally argue that the HAVA requirements have increased the ongoing costs of
elections to state and local jurisdictions, and that failure to provide ongoing funding
makes the requirements an unfunded mandate. Opponents argue that the impact on
ongoing costs can be minimal, depending on how states choose to implement the
requirements, and that ongoing federal funding may lead to increased federal control
over election administration, contrary to the established U.S. tradition of state and24
local control.
H.R. 533 and S. 17 would have authorized $2 billion for FY2006 and sums
necessary thereafter for payments to states to meet HAVA requirements. H.R. 939
would have authorized $3 billion for FY2006 and sums necessary thereafter for
payments to states to meet HAVA requirements. H.R. 3557 would have increased
authorization for requirements payments by $15 million.
H.R. 939 would have authorized $500 million without fiscal year limitation for
payments to implement the voter-verification and audit-capacity requirements in the
bill (see relevant sections in this report) and required the EAC to make those
payments within 30 days of enactment. H.R. 550 would have authorized $150
million for FY2006 to meet the additional voter-verification and other requirements
in that bill. H.R. 939 would also have required states to establish procedures to
disburse payments immediately to local jurisdictions implementing the requirements,
and to include in their state HAVA plans a description of procedures to ensure that
payments are immediately distributed to local governments for costs of
implementation. S. 450 had similar provisions to H.R. 939 but did not require states
to establish procedures for immediate disbursement of payments to local jurisdictions
22 This section includes general provisions and those not covered under other topics in this
report.
23 An across-the-board rescission in FY2004 reduced the total amount appropriated for
requirements payments to $2.319 billion.
24 HAVA concentrates responsibility for meeting its requirements at the state level of
government, but also deemphasizes the federal role both by leaving the methods of
implementation to the states (§ 305) and denying the EAC regulatory authority not
previously granted under NVRA (§ 209).
or to include disbursement procedures in state plans. S. 450 also would have
appropriated the payments in addition to authorizing them.
H.R. 5777 prohibited use of HAVA payments to promote or oppose candidates
or political parties, directly or indirectly. H.R. 6363 required that Puerto Rico be
treated the same as one of the 50 states with respect to HAVA payments.
Political Activities of Election Officials
Some controversy emerged after the 2000 and 2004 elections over the activities
of state elected officials with responsibility for conducting elections. In some cases,
the controversy concerned official actions with respect to the election process, and
in others, conflict of interest issues arose over the political activities of state officials
with election responsibilities. The National Voter Registration Act of 1993 (P.L.
103-31) requires each state to identify a chief state election official, and HAVA
requires those officials to perform certain tasks. In most states, that official is the
secretary of state or equivalent. Those are usually elected officials, although a
number are appointed by the governor or selected by the legislature. In all cases, the
secretary of state is a partisan office. However, in several states, the chief state
election official is appointed by a bipartisan board. Arizona, California, and Ohio
considered legislation in 2006 to regulate in some fashion the political activities of
state or local officials with election responsibilities.
H.R. 834, H.R. 939, S.391, and S. 450 prohibited chief state election officials
from taking part in campaigning or other prohibited political activities with respect
to any federal election over which the official has managerial authority.
Polling-Place Capacity
The occurrence in 2004 of long lines at some polling places, and long waits for
some voters, raised questions about whether election jurisdictions were distributing
voting systems and pollworkers efficiently and fairly. HAVA is silent on this issue,
and states vary with respect to requirements for polling place capacity, and little25
research is available on how best to determine polling place capacity. Some
innovations are occurring, such as the use of “vote centers” rather than traditional26
precinct polling places in some jurisdictions, and easing of waits on election day is
one of the arguments used by advocates of early and no-fault absentee voting.
25 One exception is a study of allocation in Cuyahoga County, OH, performed at the request
of the county, in which a simulation model led to the conclusion that with the county’s
allocation strategy, “even a moderate turnout ratio will likely cause certain polling locations
to be overwhelmed” (Election Science Institute, DRE Analysis for May 2006 Primary,
Cuyahoga County, Ohio, August 2006, available at [http://bocc.cuyahogacounty.us/GSC/
pdf/esi_cuyahoga_final.pdf].
26 Vote centers, pioneered by Larimer County, CO (information is available on the county
clerk’s website at [http://www.co.larimer.co.us/elections/votecenters_tab.htm]) are
conveniently located polling places that allow voters from any precinct in a jurisdiction to
cast a regular ballot.
H.R. 533 and S. 17 required states to adhere to standards to be developed by the
EAC on the minimum required numbers of voting systems and pollworkers at polling
places. H.R. 939 and S. 450 required each state to provide for a minimum number
of voting systems, pollworkers, and election resources for each voting site, according
to standards to be established by the EAC, to ensure equal waiting times of one hour
or less. They required that the standards take into account specified demographic
factors and the type of voting system. Deviation from the standards due to unforeseen
circumstances, such as a natural disaster or terrorist attack, is permitted upon
reasonable public notice. They also required the EAC to establish and states to
follow a remedial plan for each jurisdiction where the EAC determines that a
substantial number of voters waited more than 90 minutes in the November 2004
election, and that the EAC study encouraging government workers to serve as
pollworkers.
H.R. 4989 required that states follow standards specified in the bill for number,
location, and operating hours of polling places, the number and training of
pollworkers, and the number of check-in and voting stations in a polling place. It
specifically applied the requirement to early-voting sites as well as election-day
polling places. It required the EAC to develop guidance for this requirement,
provided for a private right of action to enforce it, and would have authorized $50
million to fund implementation. It also directed the EAC to study alternative
methods to obtain pollworkers.
Pollworker Training
In most jurisdictions, pollworkers on election day are volunteers who undergo
little training and are paid little if at all for a workday that often runs 14 hours or
more. Traditionally, many are retired and many are reportedly not technologically27
proficient. Jurisdictions vary substantially in how they staff the polls and how
successful they are, with more staffing problems tending to occur in lower-income28
jurisdictions. HAVA established two specific programs aimed at improving the
availability of pollworkers, one to recruit college students as pollworkers (§ 501 —
503), and one to recruit high school students (§ 601). There appears to be little
publicly available research on pollworker training, but what evidence is available
supports the contention that pollworkers themselves regard the training as
inadequate.29
H.R. 533 required all pollworkers to undergo training to be established by the
EAC. H.R. 939 and S. 450 required each state and jurisdiction to ensure that
pollworkers receive adequate training on specified topics no earlier than three months
before the election. H.R. 2250 required states to certify that pollworkers have
training programs on specified topics and would have authorized sums necessary for
payments to states to meet this requirement.
27 See for example, Election Science Institute, DRE Analysis.
28 EAC, 2004 Election Day Survey, Chapter 12.
29 Ibid.
Proportional Representation and Instant-Runoff Voting
In the United States, elected officials are chosen mostly in single member,
plurality elections whereby the candidate with the most votes in the election district
is elected.30 Parliamentary elections often use a type of proportional system, with
candidates elected from a party list according to the overall proportion of the vote
received by a party. A form of proportional representation has been used on occasion
at the local level in the United States to elect multiple representatives from a single
district, with voters choosing more than one candidate for the contest. A variation
on this approach is cumulative voting, in which the voter can split his or her vote (for
example, voting for 2 candidates gives each one-half a vote, voting for 3 one-third,
and so forth). Federal law does not permit proportional representation for seats in the
House of Representatives.31
Another approach is “instant-runoff” elections, in which voters rank candidates,
and if no candidate wins a majority of first choices, the candidate with the lowest
number of first choices is eliminated and the second choice on each of those ballots
is added to the totals for the corresponding candidates remaining.32 The process is
repeated, if necessary, until one candidate has a majority of votes. This method is
used in some other countries and in some local jurisdictions in the United States.
H.R. 2690 would have permitted states to use multiseat congressional districts
for some or all of its House seats and to use proportional voting to fill them. It also
permitted states to use instant-runoff voting in federal contests except for multiseat
districts and would have authorized $500 million for FY2006 and sums necessary
thereafter for grants to states to implement the bill’s provisions. H.R. 1989 would
have established a commission to examine alternatives to the current method of
electing Members of the House, including cumulative voting and proportional
representation.
Provisional Ballots
HAVA requires that any voter not listed as registered must be offered and
permitted to cast a provisional ballot (§ 302(a)). This is a separate ballot that is set
30 This is sometimes called the “first past the post” method.
31 “In each State entitled ... to more than one Representative ..., there shall be established by
law a number of districts equal to the number of Representatives to which such State is so
entitled, and Representatives shall be elected only from districts so established, no district
to elect more than one Representative....” (2 USC 2c).
32 For example, suppose the following scenario: There are three candidates A, B, and C.
At the first tally, A receives 40% of first choice votes, B 35%, and C 25%. No candidate
has won a majority, but C, having the fewest first-choice votes, is eliminated. Of those
voters who voted for C as first choice, 80% chose B as their second choice, and 20% chose
A. Those votes are then added to the totals for A and B, leading to a final result of A
receiving 45% of the vote and B 55%. B therefore wins the election. The example shows
benefits and disadvantages of instant-runoff voting. More voters clearly had a stronger
preference for A than either other candidate. However, a majority of voters also preferred
B over A.
aside along with relevant information about the voter so that election officials can
determine whether the person is entitled to vote. Jurisdictions must establish free
access systems so that voters casting a provisional ballot can determine if it was
counted and if not, why not. HAVA also requires that any ballots cast during a court-
ordered extension of polling hours be provisional (§302(c)). The provisional ballot
requirement has been somewhat controversial, although broader use of such ballots
was called for by all the major reports stemming from the 2000 election controversy
and was included in both the original House- and Senate-passed versions of HAVA.
States vary in how this requirement is implemented, and some of those
interpretations have been subject to litigation.33 In some states a ballot is counted at
least for some contests even if cast outside the voter’s home precinct. In other states,
provisional ballots are counted only if they are cast in the home precinct. Provisional
ballots may be especially at issue in some close contests, where the outcome may not
be known until these ballots are processed, which can take several days and may be
subject to litigation. Provisional balloting may become less important with
implementation of the HAVA requirement for computerized registration lists (see
below).
H.R. 533, H.R. 2104, H.R. 4989, and S. 17 required provisional ballots to be
counted if cast at any polling place in the state where the voter is registered. H.R.
2104 also required that voters appearing at the wrong polling place be given the
location of the correct one and notified that they can vote there instead of casting a
provisional ballot. H.R. 3094 required provisional ballots to be counted if cast at any
polling place in the jurisdiction (before 2008) or state (thereafter) where the voter is
registered, and that each polling place have lists of names and correct polling places
for each registered voter in the jurisdiction. H.R. 4989 required implementation of
safeguards to protect against the counting of both a provisional and other ballot by
the same voter in an election, and for the EAC to provide voluntary guidance for this
requirement.
H.R. 939 and S. 450 required that the determination of eligibility for casting a
provisional ballot be made without regard to where the ballot was cast or to any
requirement to present identification; and required the appropriate state election
official to develop procedures for timely processing and counting of the ballots,
according to EAC guidelines. They also required that the procedures include
standards to assure that candidates and parties have effective recourse to and
informed participation in recount and contest procedures after the provisional ballot
count, with reasonable procedures to protect personal information collected during
ballot processing. H.R. 4989 prohibited jurisdictions from requiring that voters who
meet the identification requirements in the bill and who cast a provisional ballot
provide any additional identification subsequently for the ballot to be counted. It also
required that each provisional ballot contain all information needed to cast a vote in
the polling place. The bill also would have modified the notification requirement to
stipulate that election officials actively notify the voter whether the ballot was
counted and if not, the reasons why and how the voter may challenge that
33 For a detailed discussion of state implementation and issues, see CRS Report RL32653,
State Election Laws: Overview of Statutes Providing for Provisional Ballot Tabulation, by
L. Paige Whitaker and Arthur Traldi.
determination. It required election officials, in making their determination, to
consider any information provided by the voter when applying to register. It also
prohibited recounts before provisional ballots have been counted, and required that
rejected provisional ballots be treated as applications for voter registration.
S. 414 would have modified HAVA to stipulate that whether a provisional ballot
is counted will be determined in accordance with state law relating to where a person
is required to vote.
H.R. 4989 would have repealed the HAVA requirement that voters who vote
during polling hours extended by court order must use provisional ballots, and
stipulated that they must vote using the same method they would during regular
voting hours.
Recounts
State laws vary for recounting ballots and for the circumstances that trigger a34
recount. Some states require an automatic, partial recount for a close race, or in
some cases for all races.35 Most permit recounts when requested by a candidate,
although some allow the request only if the election is sufficiently close. Several also
permit recounts requested by voters. Recounts may also be ordered in at least some
states if irregularities are suspected.
Some observers believe that to help prevent and detect fraud and error, partial
recounts should be done for all elections, and some believe that those recounts should36
be done by hand rather than machine. The likelihood that such an approach will
detect any irregularities depends on several factors, especially the size and structure37
of the recount. Usually, a partial recount would involve selecting a sample of
precincts, recounting all the ballots in each, and comparing the results with the
original count. In general, the probability that any problems with the original count
would be detected will increase as the percentage of precincts recounted increases
and as the number of precincts with errors increases. A nationwide, partial manual
recount could pose significant logistical challenges. For example, a recount of 2%
of precincts after the 2004 federal election would have involved hand counting 2.4
million ballots. Also, states are free to adopt different standards for what constitutes
a vote on a given system. Therefore, if the EAC, rather than states, performed the
recounts, it would need to vary the standards it used from state to state.
34 See electionline.org, Recounts: From Punch Cards to Paper Trails, October 2005,
available at [http://www.electionline.org].
35 Ibid. Those states are California, Kentucky, New York, and West Virginia.
36 California, for example, requires an automatic, hand recount of ballots in at least 1% of
precincts statewide in each election (California Elections Code § 15360), and West Virginia,
for voter-verified paper ballots, 5% of precincts (WVC § 3-4A-28).
37 See also CRS Report RL33190, The Direct Recording Electronic Voting Machine (DRE)
Controversy: FAQs and Misperceptions, by Eric A. Fischer and Kevin J. Coleman.
Whether hand counts or machine counts are more accurate can also vary. In
general, humans are not as accurate as machines in performing simple, highly
repetitive tasks such as counting ballots. That is one reason why repeated manual
recounts may yield different results. Machine accuracy is especially likely to be
higher if the ballot choices made by the voter are printed rather than marked by hand.
In contrast, machines are not as good at judging voter intent if markings are
ambiguous or not within machine parameters, as may be the case if the ballots are
marked directly by voters, as in most optical scan systems. Machine miscounts can
also result from miscalibration or other technical problems. However, there are
several ways to guard against such problems.
H.R. 533 required states conducting recounts to follow standards to be
established by the EAC. H.R. 550 required the EAC to conduct random,
unannounced hand counts of voter-verified records for each general election,
including state and local elections at the option of the state, in at least 2% of precincts
per state (at least 1 precinct per county), to compare the counts with those announced
by the state, and to publish the results. It required each state and jurisdiction being
audited to provide the EAC with the information and materials it requests for the
audit. It would have prohibited certification of results for an audited election before
publication of the audit results, except when necessary for the appointment of
presidential electors. It also provided the EAC authority to conduct additional hand
counts if the audit raises concerns about accuracy, and provided for the Attorney
General or an individual to seek declaratory and injunctive relief with respect to
actions of a jurisdiction relating to an audit. It would have authorized appropriation
to the EAC of sums necessary for the recounts required by the bill.
H.R. 939 and S. 450 required the EAC to conduct random, unannounced hand
counts of voter-verified records for each general election, including state and local
elections at the option of the state, in at least 2% of precincts in each state
immediately after the election, and to publish the results in the Federal Register.
Redistricting and Apportionment
The U.S. Constitution requires that apportionment of seats in the House of
Representatives be aligned with the population sizes of the various states every ten
years.38 In 2003, the state of Texas performed a second redistricting, the
constitutionality of which was eventually decided by the U.S. Supreme Court.39 H.R.
830, H.R. 2642, H.R. 4094, and S. 2350 would have restricted states to one
congressional redistricting after each decennial census, with an exception for court-
ordered redistricting. All but H.R. 830 further required each state to appoint and use
an independent commission for redistricting. H.R. 5451 and S. 2693 required the
38 See Congressional Research Service, United States Constitution: Analysis and
Interpretation (Constitution Annotated), Article 1, The Census Requirement,
[ ht t p: / / www.cr s.gov/ pr oduct s / c onan/ Ar t i c l e 01/ t opi c_S2_C3_1_1.ht ml ] .
39 See CRS Report RS22479, Congressional Redistricting: A Legal Analysis of the Supreme
Court Ruling in League of United Latin American Citizens (LULAC) v. Perry, by L. Paige
Whitaker.
Census Bureau to adjust census figures to eliminate the effect of illegal immigrants
on apportionment.
Restoration of Voting Rights to Convicted Persons
Voting eligibility has been an issue throughout the history of the United States.
Most often, the focus has been on suffrage itself — who should have the right to
vote. In the Colonial period and early years of the Republic, requirements based on
land-ownership, age, and sex were the norm, and they were intended to limit voting
to those with a stake in the community and the necessary understanding of public
affairs that naturally followed. Although non-landowners and women may have
voted in some places, eligibility was mostly limited to landed freemen of 21 years or
older. Because the U.S. Constitution addressed neither eligibility nor how elections
should be conducted, practices varied from state to state. Over time, uniform
requirements for eligibility concerning race, sex, economic status, and age were
adopted (the 15th, 19th, 24th, and 26th Amendments). Eventually, a pattern of
registration practices had developed to maintain control of the franchise and serve the
interests of the political parties. Citizenship and lengthy residency requirements were
adopted, in part, as a reaction to waves of immigration and the rise of machine
politics. And by requiring a voter to declare their party affiliation at the time of
registration, voting in primaries would be limited to party members only. In the
South, the dominant Democratic Party adopted the white primary, which excluded
African Americans from party membership and, consequently, from any kind of
effective participation. The white primary, poll taxes, literacy tests, the grandfather
clause and other discriminatory devices were eventually banned, yet they illustrate
the history of voter registration as a means for limiting participation.
With the advent of universal suffrage in the 20th century, much of the policy
debate over enfranchisement has largely subsided, except for the issue of voting by
those who have been convicted of crimes. States vary with respect to what they
permit.40 Almost all states prohibit voting while incarcerated for a felony, the
exceptions being Maine and Vermont. Most also prohibit felons from voting while
on parole or probation. Restoration procedures vary, being automatic after a
specified period in many states while others require special petition or other action.
H.R. 663, H.R. 939, H.R. 2398, H.R. 4762 and S. 450 declared that the right
of a U.S. citizen to vote shall not be denied or abridged because that person has been
convicted of a criminal offense unless, at the time of the election, the person is
serving a sentence or on parole or probation (“under the supervision … of a
governmental authority” in H.R. 2398) for a felony offense. Except for H.R. 2398,
they would have permitted the Attorney General or, if a violation is not corrected
within a specified time, the person who has suffered from it to bring a civil action for
relief; they forbade prohibition of less restrictive laws, and would have established
that rights and remedies provided are in addition to all others provided by law.
Except for H.R. 663, they also required states to notify convicted felons of their right
to vote when reinstated. H.R. 1300 was similar except it limited restriction of voting
40 The Sentencing Project, “Felony Disenfranchisement Laws in the United States,”
November 2006, [http://www.sentencingproject.org/pdfs/1046.pdf].
rights to incarcerated felons and conditioned the use of federal prison funds on the
existence of a notification program. H.R. 4202 was similar to H.R. 1300 except it
did not contain the notification or funding provisions of the latter bill.
Security of Voting Systems and Procedures
There is currently some controversy about how secure computer-assisted voting
systems are from tampering. The controversy has been most focused on systems that
record votes directly onto an electronic medium — called direct-recording electronic
voting systems or DREs. There has been some disagreement among experts about
both the seriousness of the security concerns and what should be done to address41
them. While it is generally accepted that tampering is possible with any computer
system, given sufficient time and resources, some experts believe that the concerns
can be addressed using established practices. Others believe that significant changes
are needed.
Among the steps proposed are requiring the use of “open source” software code,
which would be available for public inspection; prohibition of wireless
communications in voting systems; adoption of stringent security process standards
and practices by manufacturers and others in the chain of custody for voting systems;
the development of systems that effectively mimic electronically the observability of
manually counted paper ballot systems; and the printing by DREs of document
ballots where a voter could verify the choices made and that would be hand-counted
if the election results were contested (these last two are discussed in the section on
voter verification below). Some experts have called for such changes before DREs
are more widely adopted. Others believe that procedural and other safeguards make
DREs sufficiently safe from tampering, that some proposed solutions would create
substantial problems that would more than outweigh any benefits, and that the
controversy risks drawing attention away from the demonstrated utility of DREs in
addressing known problems of access to and usability of voting systems.
In December 2005, the EAC adopted the Voluntary Voting System Guidelines
(VVSG), a set of technical standards for voting systems, based on the Voluntary
Voting Systems Standards (VSS) previously developed by the Federal Election
Commission.42 Developed in cooperation with NIST, the guidelines, required by
HAVA, contain many security provisions related to items listed above. However,
they do not require open-source software or the verification methods mentioned
above, they do not prohibit the use of wireless communications, and they do not
specifically address security process standards and practices. Also, in cooperation
with NIST, the EAC is developing a HAVA-required voting-system testing and
certification program to replace the one used with the VSS.
41 See CRS Report RL32139, Election Reform and Electronic Voting Systems (DREs):
Analysis of Security Issues, by Eric A. Fischer, and CRS Report RL33190, The Direct
Recording Electronic Voting Machine (DRE) Controversy: FAQs and Misperceptions, by
Eric A. Fischer and Kevin J. Coleman.
42 See CRS Report RL33146, Federal Voluntary Voting System Guidelines: Summary and
Analysis of Issues, by Eric A. Fischer.
Software. Some computer security experts believe that open-source code is
more secure than proprietary or closed-source code, while others believe that closed-
source code can be at least as secure.43 Voting systems currently in use rely on
closed-source code. Also, some current voting systems in widespread use employ
proprietary commercial off-the-shelf (COTS) software, such as Microsoft Windows.
It is doubtful that a company providing closed-source COTS software would be
willing to disclose the code. In addition, HAVA defines voting system to include
components other than those in the voting machine per se, such as the computer code
used to define ballots and to make materials available to the voter. Such components
are part of all voting systems and probably use proprietary software (operating
systems, word processors, database software, and so forth) in all cases. Therefore,
it appears unlikely that any voting system currently in use in the United States —
except hand-counted paper-ballot systems where the ballot is not generated with the
aid of a computer — could meet an open-source requirement.
It is also not clear what impact an open-source requirement would have on the
marketplace for voting systems. While it may draw in new companies that specialize
in using open-source code, and provide new opportunities for innovation, it could
also cause some current voting system manufacturers to withdraw from the
marketplace, especially if they believed that revealing the code of their systems
would substantially reduce the competitiveness of their products.44 Such potential
problems could presumably be addressed by precisely defining what components of
what voting systems an open-source requirement would affect.
One alternative to open source is the use of a reference collection such as
NIST’s National Software Reference Library.45 A digital signature is determined for
deposited software and can be compared to the signature of corresponding software
received by a state or local jurisdiction before it is installed in voting machines. If
the signatures differ, the jurisdiction’s software has been modified. Several major
vendors have voluntarily deposited software with the library for use in this kind of
comparison.46 This procedure permits testing of software integrity without revealing
proprietary code, but it cannot test for problems that might exist in the reference copy
itself. For example, if malicious code were hidden in the software at the factory
during the development process, it would not be detected by this procedure.
However, other methods are available to reduce the risk of such tampering (see
section on code of practice below).
43 See CRS Report RL31627, Computer Software and Open Source Issues: A Primer, by
Jeffrey W. Seifert.
44 If the reason for loss of competitiveness were security vulnerabilities that were revealed
as a result of the disclosure, the withdrawal might be warranted, but if what would be
revealed were legitimate intellectual property such as innovations in the user interface, then
withdrawal might reduce the opportunity for further innovation.
45 National Software Reference Library, “NSRL and Voting System Software,” April 3,
46 National Software Reference Library, “Voting Software Reference Data Set,” March 7,
H.R. 533, H.R. 550, H.R. 939, and S. 450 would have required the use of open-
source software in voting machines and directed the EAC to establish software
standards. Those bills and H.R. 3094 required disclosure of the software code to the
EAC for public inspection. H.R. 3094 also required manufacturers to provide the
EAC and the state chief election official (SCEO) with copies of election software
code used in the state and to notify the SCEO immediately of any alterations. H.R.
550 prohibited alteration of code after certification of the system unless it was
recertified. H.R. 470 required that software for any electronic voting machine used
by a state be submitted to the state by the manufacturer and that the state test the
software in the voting machine at least 30 days before the election and on the day of
the election. H.R. 3094 required that each SCEO ensure that all election software
be digitally signed by all custodians and make that information publicly available.
Communications. The use of wireless communications in computer systems
provides unique risks with respect to attack by hackers and therefore requires special
attention with regard to security. Some observers believe that voting systems should
not use wireless communications, because of those potential security risks, while
others believe that such communications can be made sufficiently secure. However,
any mode of electronic communication — by modem, Internet, or memory card, as
well as wireless — provides potential points of attack for a voting system; but some
means of communication is required. Many computer experts would argue that
proper use of cryptographic methods would provide more security than prohibition
of any one mode of communication, but that if wireless communication were to be
prohibited, then Internet and possibly even modem communications should be as
well. Nevertheless, wireless communication is arguably the least secure by far of the47
three, and the EAC has recommended that it not be used.
H.R. 550, H.R. 939, and S. 450 prohibited the use of wireless, power-line, or
concealed communication devices in voting systems, or connection to the Internet;
and required certification of voting systems by EAC-accredited laboratories as
meeting those requirements.
Code of practice. It is generally accepted that security should involve a focus
on three elements: personnel, technology, and operations.48 The personnel element
focuses on a clear commitment by leadership, appropriate roles and responsibilities,
access control, training, and accountability. The technology element focuses on the
development, acquisition, and implementation of hardware and software. The
operations element focuses on policies and procedures.
47 Election Assistance Commission, “Issues and Shared Practices in Administration
Management and Security for All Voting Systems,” 9 August 2004, [http://www.eac.gov/
bp/avs.asp]. The VVSG contain detailed provisions on recommended controls for security
if wireless communications are used (Vol. 1, Chap. 7, available at [http://www.eac.gov/
vvs g_intro.htm]).
48 National Security Agency (NSA), “Defense in Depth: A Practical Strategy for Achieving
Information Assurance in Today’s Highly Networked Environments,” NSA Security
Recommendation Guide, 8 June 2001, available at [http://nsa2.www.conxion.com/support/
guides/sd-1.pdf].
Maryland, Ohio, and California have undertaken studies of the security of
DREs.49 While the studies took different approaches and examined different aspects
of DRE security, they addressed aspects of the above elements, and each found
concerns in whatever areas of security it examined. Those included computer
software and hardware, and security policies and procedures, including personnel
practices, along the supply chain from the manufacture of the machines to their use
in the polling place. The studies made specific recommendations for addressing the
risks and concerns identified, with many of the recommendations relating to
operations and personnel.
HAVA contains no explicit requirements relating to those elements with regard
to the development, manufacture, and deployment of voting systems. It does require
technological security measures for state voter-registration lists (see below), and the
auditability requirement for voting systems can be an important security control.
H.R. 470, H.R. 550 and H.R. 3094 required voting-system manufacturers to
identify to the EAC those persons involved in writing the software, including any
convictions for fraud (H.R. 550 and H.R. 3094 specified election fraud but the latter
also included any felony). H.R. 550 required manufacturers and election officials to
document the chain of custody of software used in voting systems. H.R. 939 and S.
450 prohibited the use of voting systems the manufacturers of which did not meet
security standards relating to background checks, internal security, chain of custody
for software, provision of software codes to the EAC, alteration of codes, and other
requirements as may be stipulated by NIST. H.R. 3910 required criminal
background checks for election officials involved in vote tabulation and certification.
Other provisions. H.R. 939 and S. 450 required testing laboratories to disclose
to the EAC information relating to certification and for the EAC to make that
information publicly available (such disclosure is not currently required). The bills
required the EAC to report to Congress, in consultation with NIST, on a proposed
security review and certification process for voting systems, and on safeguarding the
security of voting systems, including standards for manufacturers. They also required
the EAC, in consultation with NIST, to provide security consultation services for
49 Maryland: Science Applications International Corporation (SAIC), “Risk Assessment
Report: Diebold AccuVote-TS Voting System and Processes” (redacted), SAIC-6099-2003-
261, 2 September 2003; Maryland Department of Legislative Services, “A Review of Issues
Relating to the Diebold AccuVote-TS Voting System in Maryland,” January 2004;
Maryland Department of Legislative Services, “Trusted Agent Report: Diebold AccuVote-
TS Voting System,” prepared by RABA Technologies Innovative Solution Cell, 20 January
index.html].
Ohio: Ohio Secretary of State, “DRE Security Assessment, Vol. 1, Computerized Voting
Systems, Security Assessment: Summary of Findings and Recommendations,” prepared by
InfoSENTRY, 21 November 2003; Ohio Secretary of State, “Direct Recording Electronic
(DRE) Technical Security Assessment Report,” prepared by Compuware, 21 November
California: David Wagner and others, “Security Analysis of the Diebold AccuBasic
Interpreter,” February 14, 2006, available at [http://www.ss.ca.gov/elections/elections_
vs.htm].
election administration to states and localities and would have authorized $2 million
for that purpose from FY2006 to FY2010. H.R. 278 and H.R. 3910 required that
the voluntary voting system guidelines developed by the EAC include provisions on
the security of electronic data.
State Laws on Election Administration
Some concerns have been raised in recent elections about possible confusion
among voters resulting from changes to election laws and procedures. HAVA
requires that certain information be posted at polling places (§302(b)) but does not
require public notice of such changes.
H.R. 533, H.R. 939, S. 17, and S. 450 would have required states to provide
public notice before an election of any changes in state election-administration law.
H.R. 939, H.R. 3094, and S. 450 required each state to publish all laws, regulations,
procedures, and practices related to elections on January 1 of an election year and to
maintain an updated version of this information on an Internet website.
Voter Error
After the 2000 election, the problem of voter error was one of the issues driving
the replacement of voting machines in many jurisdictions. The residual vote50 was
especially high for punchcard voting systems. In general, the worst-performing
systems are those that provide little or no feedback to the voter for error prevention
and correction. HAVA addressed this problem by providing funding to states for
replacement of punchcard and lever-machine systems,51 and by requiring that voting
systems provide for error detection and correction. However, it exempted hand-
counted paper ballot, punchcard, and central-count systems from this requirement,
provided that states using such systems educate voters about the impact of marking
errors and how to correct them.
There are no established standards or benchmarks for voter-error rates. The
VVSG contains standards for machine error, but not voter error. One problem is that
voters may intentionally fail to vote on one or more ballot items or may even
intentionally mismark the ballot. Ballot secrecy makes it impossible to determine
with any certainty how much of the residual vote is intentional. Nevertheless, some
observers have called for the establishment of national benchmarks for residual votes.
H.R. 533, H.R. 939, S. 17, and S. 450 would have eliminated the exception for
punchcard and central-count voting systems to the voter verification and correction
requirement in HAVA. H.R. 939 and S. 450 also required the EAC to issue and
maintain a uniform benchmark, based on good practices in representative
50 See section on election statistics, above.
51 Lever machines perform fairly well with regard to some kinds of voter error, especially
overvotes, but they are no longer manufactured and are widely regarded as obsolete.
jurisdictions, for the residual-vote error rate.52 The bills stipulated that jurisdictions
may not exceed the benchmark. They also required the EAC to study and report to
Congress on certain communities that have historically high rates of intentional
undervoting compared to the rest of the nation, and directed that the EAC may set a
separate benchmark for or exclude such communities from the national benchmark.
H.R. 3557 encouraged states to distribute sample ballots and other voter information
prior to elections to reduce voter error.
Voter Identification
HAVA requires that certain voters who had registered by mail present a form
of identification from a list specified in the act (§303(b)). The identification
requirement applies only to first-time registrants who register by mail, if the voter has
not previously voted in a federal election in the state, or in a local election
jurisdiction in cases where the state does not have a computerized, statewide voter
registration system. Such voters must present one of the following forms of
identification: “a current and valid photo identification [or a copy if voting by mail];
or a copy of a current utility bill, bank statement, government check, paycheck, or
other government document that shows the name and address of the voter.” HAVA
also requires that mail-in voter registration forms contain a check box for the
registrant to certify that he or she is a U.S. citizen. The act does not prevent states
from establishing more stringent identification requirements.
Following the passage of HAVA, states enacted laws to implement the HAVA
identification requirements, and in some cases, more stringent requirements. Some
states have no additional requirements for voters to present a form of identification
beyond those in HAVA. Other states also require voters to present a form of
identification from the list in HAVA, or from a more extended list. Still others
require all voters to present photo identification. In all cases, voters who cannot
present identification are permitted to cast a provisional ballot.
The adequacy of the HAVA requirement has been controversial, and several
bills were introduced in the 109th and previous Congresses both to broaden and53
restrict that requirement. H.Con.Res. 247 and S.Con.Res. 53 expressed the sense
of Congress that national photo identification requirements for voters should be
rejected and that the U.S. Department of Justice should challenge any state law that
has discriminatory photo-identification requirements. H.R. 533, H.R. 939, S. 450,
and S. 17 would have modified HAVA to permit use of affidavits to establish identity
for first-time voters who register by mail and required the EAC to establish standards
for verification of identity of voters. H.R. 4989 required states to provide durable
registration cards free of charge to registered voters. The cards could be used to
verify identity at the polling place.
52 The residual-vote error rate as defined in these bills is equal to the combined total of the
overvotes, spoiled or uncounted votes, and undervotes in the top contest on the ballot, but
excluding a researched estimate of intentional undervotes.
53 For more detail, see CRS Report RS22505, Voter Identification and Citizenship
Requirements: Legislation in the 109th Congress, by Kevin J. Coleman and Eric A. Fischer.
In contrast, H.R. 2250 required voters and applicants for voter registration to
present a government-issued photo identification when appearing in person, or a copy
for mailed applications or ballots, but provides an exception for persons with
disabilities. H.R. 3910 required all voters, beginning in 2008, to provide state-issued
photo identification when voting, and establishes required specifications for those
identification documents. H.R. 4462 and H.R. 5913 required voters to provide proof
of citizenship when voting or to have such proof on file with the state election office.
H.R. 5913 further required all voters to present a photo identification card (or copy
if voting by mail) issued without charge by the state. H.R. 4844 required proof of
citizenship and photo identification issued by the federal government or a state
government for voting in federal elections. It required that voters who cast a
provisional ballot because they did not have the required identification provide such
within 48 hours for the ballot to be counted. It included an exception for military
overseas voters. S. 414 would have required voters to present a government-issued
photo identification if voting in person; if voting absentee, a voter with a valid
driver’s license would have to include the number, and other voters a copy of a
government-issued photo identification, the last 4 digits of the social security
number, or the voter-identification number specified in HAVA.
Several bills would have authorized funding for photo identification. S. 414
would have authorized $25 million for FY2006 and sums necessary thereafter for
EAC payments to states to provide free photo identification cards to registered voters
who did not already have them. H.R. 939 and S. 450, which did not require such
identification, nevertheless would have authorized $10 million for FY2006 and sums
necessary thereafter to promote the issuance of such cards. H.R. 2250 would have
authorized sums necessary for the EAC to make payments to states to reduce costs
to low-income persons of obtaining the identification required by the bill. H.R. 4989
would have authorized the funds necessary to assist states in issuing voter registration
cards. H.R. 5913 would have authorized funds necessary for the photo identification
cards required by the act and withholds federal highway funds from states that fail
to comply. H.R. 4844 required states to provide photo identification documents to
qualified voters who did not have such documents, and to provide them to indigent
voters at no cost. It would have authorized appropriation of such sums as may be
necessary to cover the costs of providing such identification to indigent voters.
It is common practice in many, especially less developed, countries to mark a
finger of each voter to prevent double voting. S. 414 would have authorized $5
million for EAC grants to states for pilot programs under which each voter is marked
with indelible ink after submitting a ballot.
Voting Leave for Employees on Election Day
One reason sometimes given for lower turnouts on election day is the inability
of some workers to take time from work to vote. State laws vary in this regard.
H.R. 3557 would have required employers to provide their employees with paid
or unpaid leave to permit them to vote, with enforcement similar to that provided
under the Family and Medical Leave Act of 1993.
Voting Machine Error
Accuracy in counting is a critical property for voting and vote-counting
machines. The Voluntary Voting System Guidelines (and previously, the Voluntary
Voting Systems Standards) sets a maximum counting-error rate during certification
tests of 1 in 500,000. HAVA requires that machine error-rates of voting systems
conform to the standards set in the VSS.
H.R. 3910 would have required states to test voting systems to ensure they meet
the machine-error-rate standards in HAVA.
Voter Registration
With the passage of the HAVA, Congress attempted to address voter registration
problems by requiring computerization and integration of voter registration systems
and placing primary responsibility at the state level of government. That requirement
went into effect in January 2006.54 The absence of a clear national standard for the
HAVA-required statewide systems has led to uncertainties about how states should
develop them and even whether states will be able to meet the requirements. Given
the problems some states have had,55 and the unusually large number of new voters
who registered in 2004, issues associated with voter registration systems have
become more prominent. Among them are questions about the integrity and accuracy
of the new statewide systems, the validity of new registrations, concerns about
various kinds of fraud and abuse, and the impacts of attempts to challenge the
validity of voters’ registrations at polling places.
Election-day registration. Six states — Idaho, Maine, Minnesota, New
Hampshire, Wisconsin, and Wyoming — permit voters to register at the polling place
on election day. North Dakota does not have voter registration, relying instead on
identification documents or sworn affidavits. All other states have registration
deadlines ranging from 8 to 31 days prior to an election.56 Some observers have
proposed wide adoption of election-day registration, arguing that deadlines may pose
54 The deadline was January 1, 2004, with an available two-year extension granted to all but
ten states — Alaska, Arizona, Georgia, Hawaii, Kentucky, Minnesota, South Carolina,
South Dakota, West Virginia, and North Dakota, which does not have voter registration and
is therefore exempt from the requirement.
55 See, for example, electionline.org, Assorted Rolls: Statewide Voter Registration
Databases Under HAVA, June 2005, available at [http://www.electionline.org]; and Justin
Levitt, Wendy R. Weiser, and Ana Muñoz, “Making the List: Database Matching and
Verification Processes for Voter Registration,” Brennan Center for Justice at New York
University School of Law, March 2006, p. 23, available at [http://www.brennancenter.org/
programs /downloads/ HAV A/ s vr d / S V RD% 20ma t ching% 20report.pdf].
56 Rhode Island permits election-day registration for voting in presidential contests (Election
Assistance Commission, Final Report of the 2004 Election Day Survey, report prepared by
Election Data Services, September 7, 2005, [http://www.eac.gov/election_survey_2004/
intro.htm], pp. 2-2 to 2-4).
a significant barrier to new voters or those who have recently moved.57 However,
others argue that election-day registration may increase costs and the risk of
fraudulent registrations.58 H.R. 496, H.R. 533, H.R. 939, H.R. 3557, S. 17, and S.
450 would have required states to permit election-day registration at the polling
place. H.R. 939 and S. 450 required the EAC to develop an election-day registration
form.
Registration requirements. HAVA requires that mail-in registration forms
contain specified statements, questions, and check boxes about the age and
citizenship of the registrant (§303(b)(4)(A)). The act requires identification for first-
time voters who register by mail, but it does not require proof of citizenship. H.R.
533, H.R. 939, S. 17, and S. 450 would have replaced the questions and statements
with an affidavit.59 H.R. 3094 required that mail-in voter registration forms more
prominently emphasize citizenship requirements. H.R. 4462 required voters to
provide proof of citizenship when registering to vote. H.R. 4989 required that states
accept the federal voter registration form. S. 414 would have broadened the HAVA
identification requirements to include anyone not registering in person with a
government employee. It also permitted the use of social security numbers in
identification of eligible voters.60 H.R. 6253 would have made it a crime to falsely
claim to be a U.S. citizen either to register to vote or to vote.
Internet registration. Some states permit voters to submit registration
applications online. Others require applicants to submit forms by mail or in person.
H.R. 533, H.R. 939, S. 17, and S. 450 required states to provide for Internet voter
registration and the EAC to establish standards for such registration. H.R. 939 and
S. 450 further required the EAC to study and report to Congress on the feasibility of
using the Internet for voter registration and other tasks relating to elections. HAVA
currently requires the EAC to perform a study on the use of electronics in the
electoral process; the study “may include” Internet registration among its elements
(§245).
57 About 15% of Americans move each year (Jason P. Schachter, “Geographical Mobility:
2002 to 2003,” Current Population Reports, U.S. Census Bureau, March 2004, available at
[http://www.census.go v/ prod/ 2004pubs/p20-549.pdf]).
58 There appears to be little research on the benefits and disadvantages of election-day
registration. There is some evidence that it can increase turnout, and that states practicing
it have not experienced cost or fraud problems as a result (R. Michael Alvarez, Stephen
Ansolabehere, and Catherine H. Wilson, “Election Day Voter Registration in the United
States,” VTP Working Paper #5, June 2002, [http://vote.caltech.edu/media/documents/
wps/vtp_wp5.pdf]; R. Michael Alvarez, Jonathan Nagler, and Catherine H. Wilson, “Making
Voting Easier: Election Day Registration in New York,” Demos, April 2004,
[http://www.vo te.ca ltech.edu/me dia/documents/EDRNY0404.pdf]).
59 Before being amended by HAVA, NVRA required attestation of eligibility by the
applicant.
60 HAVA permits use of the last 4 digits of the social security number. The Privacy Act of
1974 restricts the use of social security numbers by government agencies, with certain
exceptions, including seven states that use the numbers in voter registration (see Kathleen
S. Swendiman, The Social Security Number: Legal Developments Affecting Its Collection,
Disclosure and Confidentiality, CRS Report RL30318).
Rejection of application. NVRA requires states to notify applicants of the
disposition of their applications (§8(a)(2)). HAVA further requires that applicants
be notified if they fail to answer the citizenship question on the form and be provided
an opportunity to correct the form (§303(b)(4)(B)). H.R. 939 and S. 450 would have
required each state and jurisdiction to accept a voter registration application unless
there was a material omission or information that affected voter eligibility, which did
not include failure to provide a social security or driver’s license number, or
information concerning citizenship or age other than attestation; guidelines were to
be established by the EAC. These two bills, as well as H.R. 4989, required a
presumption that persons who submit a voter registration application should be
registered and required each state and jurisdiction to accept corrected applications.
H.R. 3557 required election officials to permit voters to complete registration forms
in a timely manner before the election if the forms were incomplete when submitted.
H.R. 4989 would have broadened the HAVA provision for correcting incomplete
voter registration forms (§303(b)(4)(B)) from citizenship to “any information
required.” H.R. 3094 prohibited rejection of an application for errors correctable by
the state. S. 414 would have removed the requirement for timeliness from the
provision in HAVA relating to incomplete voter registration forms and required that
voter registration forms be submitted by the applicant only and within three days after
signing.
Distribution of forms. The use of third parties to distribute and collect voter-
registration forms, a common practice in some states, has been contentious in some
instances. H.R. 2250 would have prohibited, with certain exceptions, distribution
of voter registration application forms by persons who had been convicted of a
felony, did not provide identifying information to recipients, or failed to meet other
state requirements; it required states to establish relevant standards. It also required
that persons collecting and transmitting completed forms affirm under penalty of
perjury that all applicants presented valid photo identification that matched the
information on the form, and set criminal penalties for violations. H.R. 5776 would
have prohibited distribution of forms in a state by compensated persons who had
been convicted of a felony, did not provide identifying information to recipients,
were not registered to vote in the state, or did not print and sign their names on the
form; it would have made distribution by or employment for distribution of such
persons a misdemeanor. H.R. 3910 prohibited payments on a commission basis for
distributing or collecting voter registration applications.
Removal from rolls. NVRA requires states to make “reasonable efforts” to
remove names of ineligible persons from voter rolls and sets specific requirements
for removal (§8).61 It specifically excludes failure to vote as sufficient cause for
removal. Many registration lists appear to have substantial numbers of voters who
are no longer eligible because they have moved or died, or for other reasons, and
NVRA has been criticized as exacerbating those problems. However, some
observers have also expressed concern that despite NVRA protections, significant
61 A voter may be removed because of change of residence, death, criminal conviction,
mental incapacity, or by the voter’s request. Removal because of change of residence
requires confirmation in writing by the voter, or failure to vote in two consecutive federal
elections and failure to respond to a written notice.
numbers of eligible voters have been removed from rolls during some purges.
HAVA also requires states to make “a reasonable effort” to remove ineligible
registrants from the required statewide lists62 and to use “safeguards to ensure that
eligible voters are not removed in error,” (§303(a)(4)) but it does not modify the
NVRA procedures.
H.R. 533, H.R. 939, S. 17, and S. 450 required public notice of names removed
from voter registration lists and notification to individuals before removal. H.R.
3094 required public notice at least 45 days before an election of names removed and
procedures for removal and appeal. H.R. 4989 required notification and review of
any attempt to remove a voter from the list, with special rules for removal by reason
of death. H.R. 939 and S. 450 also prohibited disclosure of the reason for a voter’s
removal except by court order. H.R. 2778 and S. 414 permitted removal from voter
registration roles of persons who fail to vote in two consecutive election cycles, if
they had not responded to mailed notification (H.R. 2778), or if they had not notified
the registrar of their desire to remain registered and a notice regarding removal was
not deliverable (S. 414). H.R. 3094 prohibited removal of persons from a voter
registration list for reasons of felony conviction or death unless the database used to
determine that status met accuracy standards established by NIST.
Computerized lists. HAVA currently requires jurisdictions to provide “adequate
technological security measures” to prevent unauthorized access to computerized
state voter registration lists. H.R. 550, H.R. 939, and S. 450 required the EAC to
certify security measures to prevent unauthorized access to computerized statewide
voter-registration lists. H.R. 4989 required the EAC to provide voluntary guidance
for audits of the lists.
For persons who present an order of protection or affidavit affirming that they
are victims of domestic violence, sexual abuse, or stalking, H.R. 4225 would have
required states to omit the address of such a person from the statewide voter
registration list and authorizes funds necessary to meet the requirement.
With the HAVA requirement that each state have a computerized, statewide
voter registration list, some observers have recommended that those lists be made
interoperable, to facilitate transfer of registration between states and reduce the risk63
of fraud. S. 414 would have required that state voter registration lists be in formats
that permit sharing and synchronization with lists of other states.
Other. H.Con.Res. 73 and S.Con.Res. 63 denoted the support of Congress for
National High School Seniors Voter Registration Day, encouraging all eligible
students to register to vote. H.R. 4989 required that lists of registered voters, and
their polling places, be posted online and at polling places, except persons who
request exclusion. S. 414 would have made paying a person to register to vote a
criminal act.
62 This includes coordinating with relevant state agencies with respect to deaths and felony
convictions (§303(a)(2)).
63 See, for example, Commission on Federal Election Reform, Building Confidence in U.S.
Elections, September 2005, available at [http://www.american.edu/ia/cfer], p. 15.
Voter Verification
Voter verification refers to the capability of the voter to determine that his or her
ballot is cast and counted as intended. No voting system currently in use in federal
elections provides true voter verifiability.64 However, paper-based document ballot
systems (hand-counted paper ballots, punchcards, and optical scan ballots) arguably
exhibit somewhat more verifiability than the nondocument systems (lever machines
and DREs).
With current DREs, a voter sees a representation of the choices made on a
computer screen or ballot face, but cannot see what choices the machine actually
records when the vote is cast. There is no independent record of the voter’s choices
that the machine totals can be checked against.65 Document ballots, on the other
hand, permit a voter to check the actual ballot before casting it, although the voter
cannot verify that the votes on the ballot were counted as the voter intended.
Many computer security experts view the lack of transparency of DREs as a
significant security vulnerability, and some advocate addressing this vulnerability by
requiring a paper record of the voter’s choices that the voter can verify before casting
the ballot. This approach is often called a voter-verified paper audit trail, or VVPAT.
The VVSG treat VVPAT as one example of a class of independent verification (IV)
systems, which include both paper and nonpaper systems.66
HAVA currently requires that a permanent paper record be produced for the
voting system and that the record be available as an official record for a recount
(§301(a)(2)), but it does not require either that the paper record consist of individual
ballots or that the paper record be used in recounts. HAVA also requires that the
system “permit the voter to verify (in a private and independent manner) the votes
selected by the voter on the ballot before the ballot is cast and counted”
(§301(a)(1)(A)(I)). However, it does not specify the method of verification.
Several bills would have required some form of verifiable paper ballot, although
some details varied. H.R. 278, H.R. 550, H.R. 704, H.R. 939, H.R. 3910, S. 17, S.
330, and S. 450 required that voting systems produce a permanent, voter-verifiable
paper ballot, although H.R. 550 exempted voting systems used exclusively to provide
disability access (see section on accessibility above). H.R. 278, H.R. 704, and S.
330 stipulated that the paper ballot serve as the permanent record of the vote when
cast. H.R. 550 and H.R. 704 stipulated that the voter-verified paper ballot serve as
64 For more in-depth discussion of this issue, see CRS Report RL33190, The Direct
Recording Electronic Voting Machine (DRE) Controversy: FAQs and Misperceptions, by
Eric A. Fischer and Kevin J. Coleman, and CRS Report RL32139, Election Reform and
Electronic Voting Systems (DREs): Analysis of Security Issues, by Eric A. Fischer.
65 Votes are recorded in more than one location inside the machine, which can protect
against certain kinds of recording and counting problems, but these are not truly independent
records.
66 See Election Assistance Commission, “Independent Verification Systems,” Voluntary
Voting System Guidelines, Version 1.0, Vol. 1, Appendix C, December 13, 2005,
[ ht t p: / / www.eac.gov/ V V SG% 20V ol ume_I.pdf ] .
the true record of votes cast, in the event of inconsistencies or irregularities between
electronic and paper records. H.R. 704 and S. 330 required that the paper records be
used for any recount or audit, and S. 330 required that it be treated as the correct
record in the event of any irregularities. H.R. 550 and H.R. 704 required that the
paper ballots be suitable for a manual audit equivalent to (H.R. 550) or equivalent
or superior to (H.R. 704) that of a hand-counted paper-ballot voting system. H.R.
939 and S. 450 required the paper ballot to be of archival quality; they also limited
payments to a state to meet the voter-verification requirements — they could not
exceed the average cost of adding a printer with accessibility features to each type of
voting system the state could have purchased. H.R. 6187 and S. 3943 would have
provided reimbursement to jurisdictions with DREs or lever machines that produced
and permitted voters to use paper ballots as an alternative. H.R. 6200 required that
hand-counted paper ballots be used in presidential elections.
Two bills provided for alternative means of verification. H.R. 533 and S. 17
required that voting systems provide a choice of independent paper, audio, pictorial,
or electronic means for voters to verify their choices before the vote is cast, with the
resulting records to be available as an official record for audits and recounts; directed
the EAC to issue standards for this requirement; and required that the voter-verified
records serve as the official count of the vote if they differ from tallies otherwise
derived from the voting system. H.R. 533 prohibited the use of cryptography in the
record.
Although HAVA does not prohibit or require any particular voting system, its
accessibility requirements effectively encourage the use of DREs, given the state of
current technology. Therefore, if VVPAT is deemed essential to ensure the security
and integrity of DRE voting, an argument can be made that HAVA should be revised
to require it. However, to the extent that the need for VVPAT is not settled, and that
requiring it might stifle innovation, and given the focus of HAVA on leaving
specifics of implementation to the states, it could be argued that the decision of
whether to implement VVPAT is best left to the states. In the 2004 election, only
Nevada required VVPAT for all machines. However, for the 2006 election
approximately half the states required VVPAT or other paper ballots.67
Bills Introduced in the 109th Congress
Unless otherwise indicated, bills introduced in the House were referred to the
House Committee on House Administration and those in the Senate to the Senate
Committee on Rules and Administration. Similar bills that had been introduced by
the same first sponsor in the 108th Congress are also noted.
H.Con.Res. 73 (McCrery). Supporting the goals and ideals of National High School
Seniors Voter Registration Day. Introduced February 17, 2005; passed House
December 5, 2006.
67 See electionline.org, “Voter-Verified Paper Audit Trail Legislation & Information,”
March 6, 2006, [http://www.electionline.org/Default.aspx?tabid=290].
H.Con.Res. 247 (Lewis). Expressing the sense of Congress that a requirement that
United States citizens obtain photo identification cards before being able to vote has
not been shown to ensure ballot integrity and places an undue burden on the
legitimate voting rights of citizens. Introduced September 20, 2005. Referred to the
Committee on the Judiciary but not House Administration.
H.J.Res. 1 (Christensen). Proposing an amendment to the Constitution of the
United States regarding presidential election voting rights for residents of all United
States territories and commonwealths. Introduced January 4, 2005. Referred to the
Committee on the Judiciary but not House Administration.
H.J.Res. 8 (G. Green of TX). Every Vote Counts Amendment. Introduced January
H.J.Res. 17 (Engel). Proposing an amendment to the Constitution of the United
States to provide for the direct election of the President and Vice President by the
popular vote of the citizens of the United States. Introduced January 9, 2005.
Referred to the Committee on the Judiciary but not House Administration.
H.J.Res 36 (Jackson of IL). Proposing an amendment to the Constitution of the
United States to abolish the Electoral College and provide for the direct election of
the President and Vice President by the popular vote of all citizens of the United
States regardless of place of residence. Introduced March 2, 2005. Referred to the
Committee on the Judiciary but not House Administration.
H.J.Res. 50 (Lofgren). Proposing an amendment to the Constitution of the United
States to abolish the Electoral College and to provide for the direct election of the
President and Vice President of the United States. Introduced May 12, 2005.
Referred to the Committee on the Judiciary but not House Administration.
H.R. 9 (Sensenbrenner). Fannie Lou Hamer, Rosa Parks, and Coretta Scott King
Voting Rights Act Reauthorization and Amendments Act of 2006. Introduced May
reported with amendments May 22; passed House July 13; passed Senate July 20;
became Public Law 109-246 July 27.
H.R. 63 (Conyers). Democracy Day Act of 2005. Introduced January 4, 2005.
Referred to the Committee on Government Reform but not House Administration.
H.R. 190 (Rohrabacher). District of Columbia Voting Rights Restoration Act of
2005. Introduced January 4, 2005. Also referred to the Committees on Government
Reform and the Judiciary.
H.R. 278 (King of Iowa). Know Your Vote Counts Act of 2005. Introduced
January 6, 2005.
H.R. 398 (Norton). No Taxation Without Representation Act of 2005. Introduced
January 26, 2005. Referred to the Committee on the Judiciary but not House
Administration.
H.R. 470 (Larson). Improving Electronic Voting Standards and Disclosure Act of
108TH CONGRESS: H.R. 4996. Similar to H.R. 470 except does not modify
HAVA §402(a).
H.R. 496 (Sabo). Same Day Voter Registration Act of 2005. Introduced February
H.R. 533 (Conyers). Voting Opportunity and Technology Enhancement Rights Act
of 2005. Introduced February 2, 2005. Also referred to the Committee on the
Judiciary.
H.R. 550 (Holt). Voter Confidence and Increased Accessibility Act of 2005.
Introduced February 2, 2005.
108TH CONGRESS: H.R. 2239. Provisions in H.R. 2239 but not in H.R. 550 are
(1) extension of time to request payments under title I of HAVA, (2) the option
to use an EAC-provided interim paper-based voting system, and (3) a change
in the deadline for meeting HAVA requirements. H.R. 550 provides more
specificity than H.R. 2239 about the paper-based verification requirement. H.R.
2239 included security provisions relating only to open-source software and
communications technologies. H.R. 2239 did not include the provisions in H.R.
enforcement of HAVA requirements, and (4) additional authorization of
requirements payments. H.R. 550 requires recounts in 2% of precincts in each
state, whereas H.R. 2239 required recounts in ½% of jurisdictions. H.R. 550
also provides more detail on the methods to be used in connection with the
recounts.
H.R. 663 (Rangel). Ex-Offenders Voting Rights Act of 2005. Introduced February
H.R. 704 (Gibbons). Voting Integrity and Verification Act of 2005. Introduced
February 9, 2005.
H.R. 830 (Waters). To limit the redistricting that States may do after an
apportionment of Representatives. Introduced February 15, 2005. Referred to the
Committee on the Judiciary.
H.R. 834 (Strickland). Federal Election Integrity Act of 2005. Introduced February
H.R. 873 (Pombo). Northern Mariana Islands Delegate Act. Introduced February
H.R. 939 (Jones of Ohio). Count Every Vote Act of 2005. Introduced February 17,
H.R. 997 (King of IA). English Language Unity Act of 2005. Introduced March 1,
2005. Referred to the Committees on Education and the Workforce and on the
Judiciary.
H.R.1300 (Conyers). Civic Participation and Rehabilitation Act of 2005.
Introduced March 15, 2005. Referred to the Committee on the Judiciary.
H.R. 1579 (Price of NC). Count Every Vote Act of 2005. Introduced April 12,
H.R. 1647 (Hastings of FL). Election Weekend Act. Introduced April 14, 2005.
H.R. 1835 (Davis of California). Universal Right to Vote by Mail Act of 2005.
Introduced April 26, 2005.
H.R. 1989 (Hastings of FL). Congress 2008 Commission Act. Introduced April 28,
H.R. 2043 (Tom Davis of VA). District of Columbia Fairness in Representation
Act. Introduced May 3, 2005. Referred to the Committees on the Judiciary and
Government Reform.
H.R. 2104 (Norton). To amend the Help America Vote Act of 2002 to permit local
jurisdictions within a State to conduct early voting in elections for Federal office held
in such jurisdictions, and for other purposes. Introduced May 4, 2005.
H.R. 2250 (Green of WI). Valuing Our Trust in Elections Act. Introduced May 11,
H.R. 2398 (Davis of IL). Constitutional Protection of the Right to Vote Act.
Introduced May 17, 2005. Referred to the Committee on the Judiciary but not House
Administration.
H.R. 2642 (Tanner). Fairness and Independence in Redistricting Act of 2005.
Introduced May 25, 2005. Referred to the Committee on the Judiciary but not House
Administration.
H.R. 2690 (McKinney). Voter Choice Act of 2005. Introduced May 26, 2005. Also
referred to the Committee on the Judiciary.
H.R. 2778 (Dent). Common Sense in Voter Registration Act of 2005. Introduced
June 5, 2005.
H.R. 3094 (Hoyer). Secure America’s Vote Act of 2005. Introduced June 28, 2005.
H.R. 3163 (Goode). To amend the Help America Vote Act of 2002 to delay for 48
months the deadlines by which States must comply with the election administration
requirements of title III of such Act, and for other purposes. Introduced June 30,
H.R. 3557 (Hastings). Voter Outreach and Turnout Expansion Act of 2005.
Introduced July 28, 2005. Also referred to Committees on Government Reform and
on Education and the Workforce.
H.R. 3734 (Davis of AL). Displaced Citizens Voter Protection Act of 2005.
Introduced September 13, 2005.
H.R. 3910 (Feeney). Verifying the Outcome of Tomorrow’s Elections Act of 2005.
Introduced September 27, 2005.
H.R. 4094 (Lofgren). Redistricting Reform Act of 2005. Introduced October 20,
H.R. 4140 (Millender-McDonald). Ensuring Ballot Access for Hurricanes Katrina
and Rita Victims Act of 2005. Introduced October 25, 2005.
H.R. 4141 (Millender-McDonald). To amend the Help America Vote Act of 2002
to permit individuals to use a national write-in absentee ballot to cast votes in
elections for Federal office, and for other purposes. Introduced October 25, 2005.
H.R. 4197 (Watt). Hurricane Katrina Recovery, Reclamation, Restoration,
Reconstruction and Reunion Act. Introduced November 2, 2005. Referred to several
committees but not House Administration.
H.R. 4202 (Conyers). Re-Entry Enhancement Act. Introduced November 2, 2005.
Referred to several committees but not House Administration.
H.R. 4225 (DeLauro). Victims of Violence Confidentiality Act of 2005. Introduced
November 3, 2005.
H.R. 4408 (King of NY). National Language Act of 2005. Introduced November
18, 2005. Referred to Committees on Education and the Workforce and on the
Judiciary.
H.R. 4462 (Gingrey). Voter Verification Act. Introduced December 7, 2005.
H.R. 4463 (Holt). Deceptive Practices and Voter Intimidation Prevention Act of
H.R. 4666 (Fitzpatrick of PA). Voting Machine Deadline Extension Act.
Introduced January 31, 2006.
H.R. 4762 (Millender-McDonald). Second Chance Voting Rights Act of 2006.
Introduced February 15, 2006. Referred to the Committee on the Judiciary.
H.R. 4844 (Hyde). Federal Election Integrity Act of 2006. Introduced March 2,
H.R. 4989 (Holt). Electoral Fairness Act of 2006. Introduced March 16, 2006.
H.R. 5122 (Hunter). John Warner National Defense Authorization Act for Fiscal
Year 2007. Introduced April 6, 2006. Referred to the Committee on Armed
Services. Passed House May 11; passed Senate, amended, June 22; conference report
passed House June 29, passed Senate June 30; became Public Law 109-364 October
H.R. 5388 (Tom Davis of VA). District of Columbia Fair and Equal House Voting
Rights Act of 2006. Introduced May 16, 2006. Referred to the Committees on the
Judiciary and Government Reform.
H.R. 5410 (Norton). No Taxation Without Representation Act of 2006. Introduced
May 17, 2006.
H.R. 5451 (Miller of MI). Fair and Accurate Representation Act of 2006.
Introduced May 22, 2006. Referred to the Committee on Government Reform.
H.R. 5776 (Pearce). Voter Bounty Registration Act of 2006. Introduced July 12,
H.R. 5777 (Pearce). Fair Voter Education Act of 2006. Introduced July 12, 2006.
H.R. 5913 (Tancredo). Voter Integrity Protection Act of 2006. Introduced July 26,
H.R. 6187 (Holt). Confidence in Voting Act of 2006. Introduced September 26,
H.R. 6200 (Kucinich). Paper Ballot Act of 2006. Introduced September 27, 2006.
Also referred to the Committee on Government Reform.
H.R. 6253 (Hyde). Criminal Code Modernization and Simplification Act of 2006.
Introduced September 29, 2006. Referred to the Committee on the Judiciary.
H.R. 6363 (Fortuño). To provide for an additional requirements payment under the
Help America Vote Act of 2002 to ensure that Puerto Rico is treated in the same
manner as other States for purposes of determining the amount of the requirements
payment made under such Act, and for other purposes. Introduced December 5,
S.Con.Res. 53 (Obama). Expressing the sense of Congress that any effort to impose
photo identification requirements for voting should be rejected. Introduced
September 20, 2005.
S.Con.Res. 63 (Vitter). Supporting the goals and ideals of National High School
Seniors Voter Registration Day. Introduced November 9, 2005.
S.J.Res. 11 (Feinstein). Proposing an amendment to the Constitution of the United
States to abolish the electoral college and to provide for the direct popular election
of the President and Vice President of the United States. Introduced March 16, 2005.
Referred to the Committee on the Judiciary but not Rules and Administration.
S. 17 (Dodd). Voting Opportunity and Technology Enhancement Rights Act of
S. 144 (Kohl). Weekend Voting Act. Introduced January 24, 2005.
S. 195 (Lieberman). No Taxation Without Representation Act of 2005. Introduced
January 26, 2005. Referred to the Committee on Homeland Security and
Governmental Affairs but not Rules and Administration.
S. 330 (Ensign). Voting Integrity and Verification Act of 2005. Introduced February
S. 391 (Lautenberg). Federal Election Integrity Act of 2005. Introduced February
S. 414 (McConnell). Voter Protection Act of 2005. Introduced February 17, 2005.
S. 450 (Clinton). Count Every Vote Act of 2005. Introduced February 17, 2005.
108TH CONGRESS: S. 1986. Required implementation of a voter-verification
method that used “the most accurate technology,” which would not necessarily
be a paper ballot as required in S. 450. Both bills contain similar provisions on
security review reports and consultation services by NIST. S. 1986 required
voting systems to meet federal computer-security requirements or more
stringent ones if established by the EAC, whereas S. 450 specifies several
requirements and provides NIST the authority to establish additional ones. S.
S. 2313.68 This bill has voter-verification provisions similar to those in S. 450,
although the requirements for accessible voting systems are more detailed in the
latter. The bills also have similar provisions on (1) communications devices
and open-source software, (2) certification of the security of state voter-
registration lists, (3) security standards for manufacturers, except that the
current bill adds the requirement for background checks, (4) provision of
security consultation services to states by NIST, (5) mandatory recounts, and (6)
repeal of the EAC’s exemption from certain contracting requirements. S. 2313
authorized $150 million rather than $500 million to meet the new verification
requirements. The current bill omits the provisions in S. 2313 that accelerated
the deadlines for compliance with HAVA requirements and required
68 The primary sponsor on this bill was Senator Graham of Florida, but Senator Clinton was
listed as the first cosponsor.
deployment of an interim paper system by states unable to meet the verification
requirements before the deadline. Other provisions in S. 450 are not contained
in S. 2313.
S. 1130 (Stabenow). Democracy Day Act of 2005. Introduced May 26, 2005.
Referred to the Committee on the Judiciary but not Rules and Administration.
S. 1867 (Feingold). Displaced Citizens Voter Protection Act of 2005. Introduced
October 7, 2005.
S. 1975 (Obama). Deceptive Practices and Voter Intimidation Prevention Act of
S. 2166 (Lott). Hurricane Election Relief Act of 2005. Introduced December 21,
S. 2350 (Johnson). Fairness and Independence in Redistricting Act of 2006.
Introduced March 1, 2006. Referred to the Committee on the Judiciary.
S. 2507 (Warner). National Defense Authorization Act for Fiscal Year 2007.
Introduced April 4, 2006. Referred to the Committee on Armed Services.
S. 2693 (Burns). Fair and Accurate Representation Act of 2006. Introduced May
2, 2006. Referred to the Committee on Homeland Security and Governmental
Affairs.
S. 2703 (Specter). Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006. Introduced May 3, 2006.
Referred to the Committee on the Judiciary but not Rules and Administration.
Reported July 19.
S. 2766 (Warner). John Warner National Defense Authorization Act for Fiscal Year
2007. Reported from the Committee on Armed Services May 9, 2006. Passed
Senate June 22, 2006.
S. 2767 (Warner). Department of Defense Authorization Act for Fiscal Year 2007.
Department of Defense Authorization Act for Fiscal Year 2007. Reported from the
Committee on Armed Services May 9, 2006. Passed Senate June 22, 2006.
S. 3828 (Inhofe). National Language Act of 2006. Introduced August 3, 2006.
Referred to the Committee on Homeland Security and Governmental Affairs.
S. 3943 (Boxer). Confidence in Voting Act of 2006. Introduced September 26,
S. 4018 (Wyden). Vote by Mail Act of 2006. Introduced September 29, 2006.
S. 4034 (Reid). Voter Suppression, Ballot Hacking, and Election Fraud Prevention
Act. Introduced September 29, 2006. Referred to the Committee on the Judiciary.
S. 4069 (Obama). Deceptive Practices and Voter Intimidation Prevention Act of