County Lobbying Effort Stalls 'HAVA II'

H.R. 811 micromanages election procedures including requiring parallel use of both electronic and paper ballots -- including at early voting locations -- and imposes costly new processes for hand-counting paper ballots.

by / September 19, 2007

Reprinted with permission from County News, a publication of the National Association of Counties. (c) 2007, National Association of Counties, Washington, D.C.

Earlier this year, congressional leaders swept aside warnings from county officials and fast-tracked legislation to rewrite the Help America Vote Act.

After an unprecedented lobbying effort by county election officials, however, those concerns are back in the spotlight. And the sponsor of the legislation -- Rep. Rush Holt (D-N.J.) -- was quoted in a Capitol Hill publication this week as saying, "[t]here are 435 members who say 'What does this mean for my three counties?'"

H.R. 811, the so-called "Voter Confidence and Increased Accessibility Act," would make sweeping amendments to the Help America Vote Act. Jurisdictions in 12 states: Arkansas, Colorado, the District of Columbia, Florida, Indiana, Kansas, Kentucky, New York, Pennsylvania, Tennessee, Texas and Virginia -- and statewide in five states: Delaware, Georgia, Louisiana, Maryland and South Carolina -- would need to eliminate all use of electronic voting equipment that does not print out a paper record of every vote before the presidential election in 2008.

They would have to replace their voting equipment again -- along with the rest of the country -- when new requirements take effect in 2012 that allow motor-impaired voters to visually inspect and cast their votes without physically handling the paper ballot. There is no voting equipment on the market that meets these requirements, and the Election Technology Council has indicated that it would be difficult for vendors to meet this deadline.

In addition, H.R. 811 micromanages election procedures including requiring parallel use of both electronic and paper ballots -- including at early voting locations -- and imposes costly new processes for hand-counting paper ballots. Its requirements would be enforced by a private right of action in federal court, although how they would be applied in a real-world election environment is sometimes unclear, raising the specter of a tide of lawsuits against county election officials and poll workers in federal court.

Despite chatter in the blogosphere that county officials want no changes to the nation's voting system, NACo has testified that county officials would indeed support federal legislation to ensure the accuracy and integrity of voting equipment and procedures, and the transparency of audits and recounts, as long as that legislation sets realistic standards and allows sufficient time, flexibility and funding for implementation. Unfortunately, as NACo Executive Director Larry Naake pointed out in a letter to Rep. Holt on Sept. 5, "H.R. 811 continues to fail in each respect.

"The bill remains overly prescriptive and would eliminate existing, successful practices that meet the objectives of the legislation and have been demonstrated in a real-world environment in favor of a theoretical, untested, one-size-fits-all model."

Reps. Dennis Moore (D-Kan.) and Tom Petri (R-Wis.) are rallying members of Congress around an amendment to bar the bill's requirements from taking effect until Congress pays the full tab and certifies that new voting equipment will meet the requirements of the bill. They presented House leaders with a letter on Sept. 4 signed by 21 members of Congress -- most of whom are members of the fiscally conservative Blue Dog Coalition and cosponsors of H.R. 811 -- citing "deep concerns" about the cost and feasibility of H.R. 811 in its current form and seeking the opportunity to offer amendments to address its "unfunded mandates and unreasonable deadlines."

Meanwhile, other members of Congress are introducing their own amendments. Rep. Louise Slaughter (D-N.Y.), chairwoman of the powerful House Rules Committee that must sign off on H.R. 811 before it reaches the House floor, persuaded House leadership to allow New York to keep its lever machines, which were rendered obsolete by the Help America Vote Act, until 2010. Rep. Mac

Thornberry (R-Texas) has offered an amendment that contains broad exemptions for jurisdictions with a population of less than 30,000. Rep. Tom Price (R-Ga.) has offered an amendment to push back each of the effective dates in the bill by two years. And Rep. Vernon Ehlers (R-Mich.), ranking member of the Committee on House Administration that has jurisdiction over the bill, has offered several amendments including a substitute containing many provisions that have been endorsed by NACo.

Rep. Susan Davis (D-Calif.), a member of the House Administration Committee who quietly voted for the bill in committee, has broken her silence on the legislation and introduced an amendment to "spark debate" on broader issues, including the calls of some activists to ban direct recording electronic voting equipment (DREs).

The Davis amendment would allow counties to continue using DREs -- such as some touch-screen voting machines -- purchased to comply with the Help America Vote Act after 2012 until each state certifies that it has a practical, cost-effective way to deploy certified ballot marking devices to meet the new accessibility requirements in H.R. 811 that would take effect in 2012. However, such use would be restricted to one unit per polling place. After that date, DREs could only be used for early voting.

There is currently no DRE on the market that would be permitted after 2012 under the Holt bill, although vendors could retrofit their existing devices or develop new products using this technology that comply with the requirements.

Alysoun McLaughlin is NACo associate legislative director.