VOTE COUNTING EQUIPMENT; VOTING; VOTING MACHINES;
January 30, 2003
MECHANICAL LEVER VOTING MACHINES AND THE HELP AMERICA VOTE ACT OF 2002
By: Mary M. Janicki, Assistant Director
You asked how and when a decision will be made as to whether Connecticut’s mechanical lever voting machines must be replaced to comply with the Help America Vote Act of 2002 (HAVA).
If Connecticut is going to request federal funding under HAVA (P. L. 107-252) to replace its mechanical lever voting machines, the governor, in consultation with the secretary of the state, must notify the administrator of the General Services Administration (GSA) by April 29, 2003. Before applying for the money, the governor and the secretary must determine whether, in their view, the lever machines meet the standards specified in the federal law and whether they want to apply for the funding. The new federal law includes funding for replacing lever machines, but it does not require the state to replace them. However, the state’s voting system, either the current machines or new electronic ones, must meet the HAVA standards by January 1, 2006. The unmodified mechanical lever voting machines used in Connecticut currently do not. The state can apply for money under a different provision to pay for modifying its lever machines to meet the act’s standards.
Under HAVA, the technology and administration of every voting system in use must meet uniform and nondiscriminatory requirements. Among other things, systems must (1) permit voters to verify who they voted for and change or correct their ballots if necessary before they are cast, (2) have a paper audit capacity, (3) be accessible to all individuals with disabilities and allow voters to vote independently and in private, and (4) be accessible in alternative languages as required by the Voting Rights Act. Election officials can satisfy the disability access requirement by having a single direct recording electronic (DRE) machine in each polling place. When utilizing different machines and procedures, officials must be mindful of the requirements for uniform and nondiscriminatory systems and practices in the act as well as in the U. S. Supreme Court’s ruling in Bush v. Gore.
If Connecticut receives federal funding to replace its voting machines, it must replace all its lever machines in time for the November 2, 2004 election, unless it applies for a waiver until 2006.
The Election Assistance Commission (EAC) created by the act is responsible for testing, certifying, decertifying, and recertifying voting system hardware and software and for serving as a clearinghouse and resource for information on procedures for administering the act. The President, with the advice and consent of the Senate, must appoint the commission’s four members by February 26, 2003. The commission’s voluntary guidelines on voting systems standards are not due until October 1, 2003.
The act gives the U. S. attorney general authority to bring a civil action against any state or locality to carry out the act’s requirements, including its voting systems standards. He can ask for declaratory and injunctive relief, including a temporary restraining order, a permanent or temporary injunction, or other order in U. S. District Court.
CERTIFICATION FOR TITLE I FUNDING
If the governor and secretary of the state decide to apply for federal funding to replace the state’s mechanical lever machines, they must notify the GSA administrator by April 29, 2003. The notice must include any information and other certifications GSA requires and certify that the state:
1. will use the payments to replace all the lever machines that were used in the November 2000 election;
2. continues to comply with other specified federal election laws; and
3. will use the money to buy voting machines that meet the standards for voting systems included in the act.
If the General Assembly has not already passed legislation needed to comply with other sections of the act (such as the provisional ballot procedures, for example), the certification can be submitted and a later certification sent when the changes are enacted.
VOTING SYSTEMS STANDARDS
The act does not outlaw or require replacement of mechanical lever machines. Instead, it specifies:
Nothing in this section shall be construed to prohibit a State or jurisdiction which used a particular type of voting system in the elections for Federal office held in November 2000 from using the same type of system after the effective date of this section, so long as the system meets or is modified to meet the requirements of this section (§ 301, P. L. 107-252).
But the law does establish a deadline and impose certain standards that every state’s voting machines must meet for elections for federal offices. Beginning January 1, 2006, HAVA requires all voting systems used in federal elections to:
1. permit the voter to verify his selections on the ballot, notify him of overvotes, and permit the voter to change his vote or correct an error before casting his ballot;
2. produce a permanent paper record for the voting system that can be manually audited and is available as an official record for recounts;
3. provide individuals with disabilities, including the blind and visually impaired, the same accessibility to voting while maintaining voter privacy and ballot confidentiality;
4. provide alternative language accessibility, as required by the Voting Rights Act of 1965; and
5. comply with the error rate standards in the federal voting system standards in effect on October 29, 2002.
In addition every state must adopt uniform standards defining what constitutes a vote and what will be counted as a vote for each certified voting system.
A spokesperson for the Voting Machine Service Center, Inc. , the company that refurbishes and sells the mechanical lever machines, addressed the new voting systems standards. She says that the machines have fold-down panels that allow them to be lowered to accommodate people in wheelchairs. There is no accommodation for people in wheelchairs who cannot use their arms. They would require assistance. To allow the blind or visually impaired to vote, officials can insert over the ballot label a clear plastic strip that has candidate and office names imprinted in Braille. The plain plastic strips are part of the ballot label now. The lever machines have no capacity for an audio feature at this time for use by blind voters who do not read Braille.
The mechanical lever machines can accommodate a ballot label written in up to three languages.
The mechanical lever machines include a feature that can provide a paper audit. Using noncarbon (NCR) paper at the back of the AVM printomatic machine, officials make an impression with the machine set at zero before the election. After the election, they make another impression that shows the vote totals for that machine. The printomatic accessory can be installed on machines manufactured after 1962.
Kennie Gill, the staff director and chief counsel of the Senate Committee on Rules and Administration, who worked on the development of the federal legislation, makes the point that the disabled accessibility requirements apply to voting by the blind or visually impaired (Braille is not an alternative solution since not all blind people can read Braille) and to voting by people who do not have the use of their arms or legs. Currently, such people can vote with assistance on the mechanical lever machines, but are not able to do so in private or independently. Having at least one DRE or properly equipped voting machine at each polling place meets the act’s disabled accessibility requirement; however, every machine the state or a municipality purchases with federal funds after January 1, 2007, must provide the kind of accessibility required by the new law. Any voter who comes to the polling place must be allowed to use the DRE machine; it cannot be segregated for use by only the disabled.
Election officials who opt to use the single DRE machine in each polling place must be aware of the act’s requirements for implementing a nondiscriminatory and uniform system. Ms. Gill points out that the U. S. Supreme Court also emphasized equal protection concerns in its decision in Bush v. Gore (531 U. S. 525 (2000)).
The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another (at 530).
It has not yet been determined whether the use of two different types of voting machines in a polling place or in the state violates equal protection requirements.
Likewise, where towns must provide ballots in alternative languages, election officials in a town cannot use a separate machine with the ballot face printed in the alternative language only for its Hispanic voters. In Connecticut, seven municipalities must provide bilingual election materials (all Hispanic) under Section 203 of the Voting Rights Act and would be covered under HAVA’s language accessibility requirement. They are: Bridgeport, Hartford, Meriden, New Britain, New Haven, Waterbury, and Windham (Federal Register, Vol. 67, No. 144, July 26, 2002, p. 48873).
REQUIREMENTS PAYMENTS UNDER TITLE II
HAVA includes authorization for other funding to help qualifying states meet its requirements and for other activities to improve election administration. A state is eligible to receive these funds if the governor, in consultation with the secretary of the state, files a certification with the commission. These funds can be used to modify voting systems to meet the voting systems standards. The money can also be used to comply with provisional voting procedures, make voting information available, implement a computerized statewide voter registration list, and comply with voter identification procedures for first-time voters who registered by mail.
The EAC will allocate a minimum payment plus an amount based on the relative size of the state’s voting age population. This provision requires a 5% state match.
Once the EAC members are appointed, it will be available to provide advice and technical assistance on how states must comply with the act’s voting systems standards. HAVA calls for the appointments by February 26, 2003. To help states in complying with the act’s standards, EAC must adopt recommendations that give voluntary guidance and publish them (after the opportunity for public comment and a public hearing) in the Federal Register by January 1, 2004.
The act gives the U. S. attorney general and Department of Justice enforcement authority. They can bring a civil action in U. S. District Court against any state or local jurisdiction to carry out the law’s uniform and nondiscriminatory election technology and administration requirements for (1) voting systems standards, (2) provisional voting and voting information, and (3) the computerized statewide voter registration list and voters who register by mail.