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[MEMORANDUM]{.underline}

TO: Chairman Rodriguez, Commissioner Davidson, Commissioner Hillman,
Executive Director Wilkey, Office of General Counsel

FROM: Commissioner Hunter and Sharmili Edwards

DATE: April 29, 2008

**RE: Proposed MOE Policy Change**

On April 14, 2008, Office of General Counsel (OGC) responded to a
request for staff comments to a proposal submitted by Commissioner
Hunter and discussed at an EAC public meeting on April 16, 2008, to
modify the Election Assistance Commission's (EAC) present policy on
Maintenance of Effort (MOE), also known as Advisory 07-003-A. This
memorandum responds to General Counsel's comments.

**[SPECIFIC CONCERNS MENTIONED BY OGC]{.underline}**

**I. OGC states that the term "State" is ambiguous**: OGC contends that
there is ambiguity in the use of the word state in §254(a)(7) of HAVA
and therefore can be construed to also mean county and local government.
The section states:

> "How the State, in using the requirements payments will maintain the
> expenditures of the State for activities funded by the payment at a
> level that is not less than the level of such expenditures maintained
> by the State for the fiscal year ending prior to November 2000."
> §254(a)(7) of HAVA.

We contend that the statutory language is not ambiguous. HAVA
specifically mentions State in §254(a)(7); in the HAVA section governing
State plans, two other sections specifically refer to units of local
government. The first section states, "How the State will distribute and
monitor the distribution of the requirements payments to *units of local
government* or other entities in the State" (§254(a)(2)[^1] (emphasis
added)) and the second section states, "How the State will adopt
performance goals and measures that will be used by the State to
determine its success and the success of *units of local government* in
the State in carrying out the plan" (§254(a)(8)). Had Congress intended
to specify MOE was applicable at the county level, it would have
specifically required units of local government to comply with the MOE
requirements of §254(a)(7). Section 901 of HAVA actually defines
"State."[^2] The definition clearly does not include units of local
government. HAVA relies on the states to file a State plan,[^3] monitor
use of funds distributed to the counties[^4], and determine the success
of the units of local government.[^5] Congress intended that the State
monitor the inner workings of the State, including local governments
when necessary, and HAVA leaves these powers to the State.

OGC argues that States do not agree on the meaning of "State" because
approximately half of the States included county and local expenditures
in the section of the State plan that requires a description of MOE:

> "Perhaps the most compelling information regarding the question of
> ambiguity is based on the plans submitted by the States to obtain HAVA
> funding. According to State plans filed with the EAC, it appears that
> approximately half (23) of the States read the term at issue consisted
> with EAC's present policy, including county and local expenditures as
> part of a States's MOE." OGC memo, Proposed MOE Policy Change, Section
> I.a. (April 14, 2008).

Appendix A to this memorandum is a list of excerpts from 53 State plans
that were published in the Federal Register on March 1, 2004 shows.
However, many, if not most, of the states included in the list of 23 do
not clearly state that they read §254(a)(7) to require counties to
maintain the effort. In fact, this list of 23 States includes Colorado,
which states, "Colorado's HAVA enabling legislation (H.B. 03-1356)
contains a number of provisions that, taken together, require
maintenance of effort that meets *and* exceeds the requirements of HAVA
2002[^6]"(emphasis added). Colorado acknowledges that its implementation
of HAVA reaches beyond what the federal law required. Delaware's State
plan section complying with §254(a)(7) of HAVA, also included in these
23 State plans, simply states, "The state will fund the Commissioner's
Office and the Departments of Elections for the counties for
expenditures at or above 2000 levels for activities consistent with
HAVA.[^7]" Delaware does not specify that its MOE included county
expenditure in its MOE baseline, nor does it specify that it was
required to do so by federal law. Tennessee does not specify if county
expenditures are included in the State's MOE baseline, but does state,
"\[t\]here will be a Maintenance of Effort requirement for each county
receiving direct funds from HAVA.[^8]" It is not apparent from this
excerpt that the State plan actually includes any county expenditure in
its MOE, nor does it make clear that the State believes that counties
must provide this information because HAVA requires it. These 23 State
plans which are cited as evidence that "State" is an ambiguous term are
actually uninformative on this issue. Information found in Appendix A is
not evidence that States included county expenditures in their MOE
baseline because it was an obligation included in HAVA. Furthermore, the
majority of states did not include any reference to counties or units of
local government in the relevant portion of the State plan. It is also
important to note that the current proposed policy does not preclude
States from including county and local government expenditures in the
MOE requirement. A State's inclusion of county and local government
expenditures in the State plan may simply reflect the State's exercise
of choice in including this information, which is consistent with
federal law as stated in HAVA.

**II. OGC argues that HAVA explicitly requires that MOE requirements
include the expenditures of local governments**: HAVA §254 does not
explicitly require States to include the expenditures of its local
government in determining MOE. This is not explicitly stated anywhere,
which means that a State has the option of doing so -- by choosing what
is best for the State. The MOE section states:

> "How the State, in using the requirements payment, will maintain the
> expenditures of the State for activities funded by the payment at a
> level that is not less than the level of such expenditures maintained
> by the State for the fiscal year ending prior to November 2008." HAVA
> §254(a)(7)

Units of local government or other such entities are not mentioned
anywhere in §254(a)(7), so to construe a requirement of determining a
maintenance of effort to include local governments or other entities is
overreaching and adds a requirement not included by Congress. The States
are requested in other sections of the State Plan portion of HAVA (§254)
to determine the best way to monitor activities at the local level; by
excluding any mention of the local level in §254(a)(7) Congress has
refrained from forcing States to include that information in the MOE.

**III. OGC contends that interpretation of the meaning of "State" must
account for the purpose of MOE**: As several States have pointed out in
their comments supporting this proposal, the requirements of HAVA have
ensured that State spending will be increased across the board, be it a
State level or at a local level. The types of changes created in HAVA
force States to spend money on activities that may not have existed
pre-HAVA. Congress did not intend HAVA to take power away from the
States in determining how to run elections; the intention was to improve
the administration of federal elections. Furthermore, OGC provides no
evidence that Congress intended to include units of local government. Of
course, Congress may amend HAVA to include local government if it so
desires.

**IV. OGC believes that the proposal would treat States unequally**: OGC
makes a fairness argument, that to allow States to leave out local and
county government expenditures from the MOE will somehow change the way
money is distributed or spent. This is irrelevant as over half of the
States did not include local and county government expenditures in their
MOE. The remaining States that did may have chosen to do so. This
proposal will give the choice back where it belongs: in the decision of
the State. Some States may choose to keep their State plans as is, and
some may choose to change it. However, that change will be a reflection
of the State's determination of the best way to approach HAVA and
elections. It takes the determination away from the EAC, which was never
intended to have that kind of broad statutory authority; otherwise
Congress would have explicitly written that power into the statute.

Additionally, as South Dakota pointed out in comments submitted on the
proposed policy, "An after-the-fact interpretation that MOE must apply
to county and local governments is a new burden placed on local election
officials that is contrary to the language of HAVA and an unfair
addition to everyone's understanding of the requirements for local
governments under HAVA.[^9]" This post-facto interpretation actually
creates inequality for the States by creating requirements that did not
exist before and retroactively forcing States to comply.

**V. OMB Circular A-102 (Common Rule) requires that statutory
requirements are made a part of any subgrant of funds**: OGC contends
that Circular A-102 requires local government to conform to the MOE
requirement of HAVA when a State makes a payment to a local
jurisdiction. But, MOE is not a grant of money to the States. MOE
requires each State to determine how much was spent in the fiscal year
ending prior to November 2000. This creates a baseline/benchmark to
compare future spending by the State, which is one of many items to be
included in a State Plan. HAVA does place restrictions on the use of
HAVA funds; however the MOE requirement is not such a restriction:

Sec. 251. REQUIREMENTS PAYMENTS.

> (b[) Use of Funds]{.smallcaps}. --
>
> \(1\) [In General]{.smallcaps}. --Except as provided in paragraph (2),
> a State receiving a requirements payment shall use the payment only to
> meet the requirements of Title III
>
> \(2\) [Other Activities]{.smallcaps}. --A State may use a requirements
> payment to carry out other activities to improve the administration of
> elections for Federal office if the State certifies to the Commission
> that --
>
> \(A\) the State has implemented the requirements of Title III; or
>
> \(B\) the amount expended with respect to such other activities does
> not exceed an amount equal to the minimum payment amount applicable to
> the State under section 252(c).
>
> §251(b) of HAVA

HAVA monies do not take the MOE into account at all when determining how
much money is to be disbursed to a State. To require county and local
governments to be included in the MOE because they *may* receive funding
from the State, arguing that subgrants require the same restrictions as
the original grant, is not appropriate because MOE is not a restriction
on the use of funds. MOE does not dictate how a State may or may not use
funds, therefore the MOE requirement cannot be construed to be a
requirement of the grant of funds, flowing down to the subgrantees.

**VI. The proposal is inconsistent with EAC's decision on matching
funds**: OGC has misinterpreted the proposed policy regarding MOE. The
policy will not preclude States from including county and local
government entities when determining MOE, but properly leave the
decision to do so with the State. This is consistent with the matching
funds policy (Advisory 05-001) which *allows* a State to use funds set
aside by county and local government in setting up matching funding,
provided it follows certain stipulations. Additionally, Advisory 05-001
makes it clear that the State, according to HAVA's matching fund
regulations, does not include county and local government. Advisory
05-001 specifies that "\[a\] State *may* use funds that are set aside by
county or local governments..." (emphasis added) and continues by making
the following stipulations:

1.  In order for the money to be under the control of the State, there
    must be some written agreement between the counties and the State
    establishing that the funds have been set aside by the counties for
    use by the State for this purpose and that the only purposes for
    which those fund may be used are those provided by HAVA for the use
    of matching funds. A cooperative agreement, memorandum of
    understanding or other contract would be sufficient to satisfy the
    requirement of a written agreement.

2.  Maintenance of funds at the county level does not obviate in any way
    the State's obligation to provide the matching funds, account for
    their use, report on their use, and audit those funds as required by
    HAVA and OMB Circulars A-87 and A-133.

3.  The provision and maintenance of matching funds by the counties does
    not alleviate the State's obligation to use all HAVA funding in
    keeping with the tenets and spirit of the Voting Rights Act and
    other state and federal laws and regulations prohibiting the
    discriminatory use of federal funds and/or discriminatory
    application of voting systems.

Stipulation two is most similar to the proposed policy for MOE; though
funds at the county level may be included by the State's matching funds,
the State is in charge of recordkeeping and reporting for those funds.

Alternatively, Advisory 05-001 also deals with a system in which funds
are determined by how much the State certifies as being available. This
is different from the MOE requirement, where funding is not determined
by the previous levels of spending by the State.

**VII. & VIII. Problem Language in the Proposed Policy & Implementation
Concerns**: As Advisory 07-003-A currently is written, changes must be
instituted to accurately reflect the MOE requirement. In addressing
OGC's concerns regarding the written language of the policy, the wording
in the recommendation has been amended:

"EAC Advisory 07-003-A, dated September 6, 2007, shall be amended to
make it clear that HAVA does not require a state to include local and
county government expenditures when determining the Maintenance of
Effort baseline as required by HAVA §254(a)(7).

This modification of EAC Advisory 07-003-A does not preclude States from
including county and/or local government expenditures when determining
the Maintenance of Effort baseline. This inclusion will be at the
State's discretion, and not because it is a requirement of Federal law."

The revised Advisory shall be brought to a vote of the Commission.

**APPENDIX A**

**A. Excerpts from State Plans Published in the Federal Register by EAC
on March 1, 2004 That Indicate Maintenance of Effort Consists of State
and County Activities**

Section 254 (a) (7) of the Help America Vote Act says that State plans
shall contain a description of *How the State, in using the requirements
payment, will maintain the expenditures of the State for activities
funded by the payment at a level that is not less than the level of such
expenditures maintained by the State for the fiscal year ending prior to
November 2000.*

**1. Alabama**

Alabama will maintain the level of state budgeting for election
requirements at the same or greater level as the state spent in the
fiscal year ending before the November 2000 election. In the fiscal year
ending September 30, 2000, the state spent no funds on activities
related to HAVA requirements. The state election-related budget
consisted of the following line items: (details excluded but total is
\$9,128,389)

Any payments to local government will be conditioned on a continuing
maintenance of effort to ensure that federal funds do not replace
existing local expenditures on election administration.

**2. Arizona**

The secretary of state will not use the requirements money to maintain
the expenditures previously incurred by the state. Funds will be
appropriated in the 2004-2005 state of Arizona fiscal budget to carry
out the Federal Election. The requirements payments will not be used to
fund the following:

-   Travel to conduct logic and accuracy tests

-   Printing, labeling and postage of sample ballots

-   Production and mailing of publicity pamphlets

The secretary of state and counties shall continue to provide
maintenance of effort in providing election and voter education as
required in the Help America Vote Act of 2002 (HAVA).

**3. Connecticut**

Consistent with HAVA 254 (a) (7) in using any requirements payment,
Connecticut will maintain expenditures of the state for activities
funded by the payment at a level equal or greater than the level of such
expenditures in state FY2000.

As in many states, however, this level of funding represents only a
small portion of the statewide aggregate operating budget expenditures
needed to sustain elections in a given fiscal year; **election
administration resources have historically been allocated to the
municipal as well**. Connecticut's 169 municipility office budgets
typically support year-round core staff and operating expenses for
continuous functions such as voter registration and IT support. In
addition, the registers of voters and town clerks require an increase in
funding for each specific election for poll workers, office staff,
ballot production, mailing and Election Day support.

It is therefore important to note that the projected HAVA budget set
forth above is based on the assumption that **the municipalities will
maintain their election operating expenses at existing levels**. **As a
safeguard for this assumption, the state will require proof from each
municipility that they have budgeted for future elections at a level not
less then the prior years budget for an election of the same type**.
Without this safeguard in place, the short term infusion of funds HAVA
provides would not be sufficient to maintain the new state election
environment in the long term.

**4. Colorado**

The State will maintain state expenditures for activities funded by the
requirements payment at a level at or above the expenditure level that
existed prior to the receipt of federal funds. No federal funds for
requirements payments will be used to supplement the state budget for
operation and administration of the Office of the Secretary of State, or
to supplant funding historically received from state sources for
election-related purposes.

Colorado's HAVA enabling legislation (H.B. 03-1356) contains a number of
provisions that, taken together, require maintenance of effort that
meets and exceeds the requirements of HAVA 2002. These provisions
include the following:

-   Every year that the State receives federal funds, the Secretary of
    State is required to maintain expenditures to support the statewide
    voter registration system from nonfederal monies at a level at or
    above the level for the 2001-02 fiscal year.

-   Every county fiscal year that the State receives federal funds, each
    county is required to maintain the same level of expenditures on
    activities arising under Title III of HAVA 2002 that it expended in
    fiscal year ending prior to November 2002.

Second, HAVA 2002 only requires maintaining state expenditures at the
level of State Fiscal Year 99-00 level (the first fiscal year ending
prior to November 2000). The State legislation uses a later and higher
base year, FY 2001-02.

**5. Delaware**

The state will fund the Commissioner's Office and the Departments of
Elections for the counties for expenditures at or above 2000 levels for
activities consistent with HAVA. The total appropriation prior to 2000
was \$3,264,102.73. Currently the State exceeds this expenditure level.

**6. Florida**

The funding provided under the Help America Vote Act of 2002 (HAVA) is
intended to pay for new or enhanced election efforts and is not intended
to supplant existing funding at the State or county level. The projected
HAVA budget is based on the assumption that the State of Florida and
counties will maintain the foundation of election operating expenditures
for the fiscal year ending prior to November 2000.

The Florida Division of Elections provides statewide coordination and
direction for the interpretation and enforcement of election laws. The
Division's budget supports year-round staff that provides
election-related assistance to Florida's 67 county supervisors of
elections and their staff, municipalities, special districts, county and
city attorneys, candidates, political committees, committees of
continuous existence, elected officials, media, the public and other
election officials throughout the United States.

In determining Florida's maintenance of effort expenditures, the
Division of Elections calculated 1999-2000 fiscal year expenditures
which included salaries and benefits, operating capital outlay and voter
fraud programs for the Division of Elections Director's office and the
portion of Bureau of Election Records' expenditures pertaining to
election administration. Florida's expenditures for these activities for
1999-2000 fiscal year totaled \$3,082,224.

In order to comply with Section 254(a)(7) of HAVA, the Florida
Department of State will maintain expenditures on similar activities at
a level equal to the 1999-2000 fiscal year budget.

**7. Iowa**

In compliance with HAVA section 254 (a)(7), in using any requirements
payment, Iowa will maintain expenditures of the State for activities
funded by the payment at a level equal to or greater than the level of
Title III expenditures in State FY 2000.

The intent of funding provided under HAVA is to pay for new or enhanced
efforts, not to supplant existing funding at the state and county level.
The projected HAVA budget is based on a critical assumption that the
state and counties will maintain this foundation of election operating
expenditures at existing levels. Without this found, the short-term
infusion of HAVA funds would not be sufficient to maintain a new state
election and voter registration system in the long-term.

**8. Kentucky**

The Governor's office of Policy and Management evaluated the budget of
the Kentucky State Board of Elections to ensure that the Maintenance of
Effort requirement has been met. In addition, there will be a
Maintenance of Effort requirement for each county receiving direct HAVA
funds.

**9. Pennsylvania**

Though the Commonwealth appreciates the commitment that the Federal
government has made to election assistance both by enacting HAVA and
providing funding to the States to allow them to fully realize the
ultimate goals of HAVA -- a free and open election process for all
citizens -- the Commonwealth realizes that it still has the primary
responsibility to maintain the programs that it was funding prior to
November 2000 and to develop new and innovative programs to make the
Commonwealth a leader in election administration.

To this end, in using requirements payment, the Commonwealth plans to
maintain expenditures of the State for activities funded by the payment
at a level no less than the level of such expenditures in FY 1999-2000.
In addition**,** the Commonwealth plans to ask each county to file an
annual report to assure the Commonwealth that each county has complied
with the requirement of HAVA that the State maintain its pre-November
2000 effort as a condition of receiving funds under title II of HAVA.

**10. Maryland:**

Consistent with HAVA §254(a)(7), in using any requirements payment,
Maryland will maintain expenditures of the State for activities funded
by the payment at a level equal to or greater than the level of such
expenditures in State FY 2000 \-- a total of \$1,994,914.

As in many states, however, this level of funding represents only a
small portion of the statewide aggregate operating budget expenditures
needed to sustain elections in a given fiscal year, as the great
majority of election administration resources have historically been
allocated at the county level. Maryland\'s 24 local election office
budgets typically support year-round core staff and operating expenses
for continuous functions such as voter registration, information
services, and IT support. In addition, LBEs provide the significant
increase in funding associated with each specific election \-- for poll
workers, temporary office staff, ballot production, mass mailings,
election day support (including personnel, equipment, and supplies),
etc. In some cases, key election support resources provided at the
county level may not even be included within election office budgets,
but are provided through other county agencies and donations.

It is therefore important to note that the projected HAVA budget set
forth in Section Six of this Plan is based on the critical budget
assumption that the State will maintain this foundation of county-funded
election operating expenditures at existing levels. Without this
foundation in place, the short-term infusion of funds HAVA provides
would not be sufficient to maintain the new State election environment
in the long term.

11. **Mississippi:**

The larger portion of the funds appropriated on a yearly basis in
Mississippi are on the county level. Mississippi's eighty-two (82) local
election office budgets typically support year-round staff and operating
expenses for continuous functions such as voter registration,
information services, and IT support. In addition, local governments
bear the largest cost increases associated with each specific election
-- poll workers, temporary office staff, mass mailings, election
material production and procurement, polling place rental, and election
day support (including personnel, equipment, and supplies). While county
funds may be allocated within the budget specifically for elections,
many costs may be "in-kind" assistance from other county agencies.

The Secretary of State's Office will work with local governments to
determine their funding for the 2000 fiscal year. All local governments
that receive the benefit of HAVA funding, through equipment, services,
or grants, will be required to maintain funding at the level determined.
Exceptions will be made for expenditures that are replaced by materials
provided by the State (ex. -- a county should not be expected to
appropriate money for a voter registration system lease, when a new
system will be provided by the State).

**12. Montana**

The secretary of state will maintain expenditures of the state for
activities funded by the payment at a level equal to or greater than the
level of such expenditures in state FY 2000.

The secretary of state and counties shall continue to provide
maintenance of effort, as required in the Help America Vote Act of 2002
(HAVA), in providing election and voter education.

**13. New Jersey**

In New Jersey, the bulk of fiscal responsibility for the conduct of
general and primary elections falls upon the counties. Each county pays
for its voting equipment, ballot printing, administrative election
offices, and a portion of the district board workers\' salary. Election
expenses at the State level are primarily related to the State Division
of Elections, which is housed in the Department of Law and Public
Safety. In light of this State/county allocation of fiscal
responsibilities relating to elections, in order to satisfy the mandate
of HAVA that no state appropriation for elections be less that the
amount expended for fiscal year 2000, all counties and the State must
maintain at a minimum the level of operating expenses for elections that
was incurred in fiscal year 2000, in addition to any federal funding
received.

**14. New York**

GOAL:

Meet statutory mandate for maintenance of effort.

PRESENT STATUS:

The State Board does not provide funds for any activities identified in
Title III. Costs for voting systems, provisional balloting, voting
information requirements, voter registration lists, and registration by
mail are borne by county boards of election.

PROPOSED PLAN:

County boards shall continue to provide maintenance of effort in
providing election and voter education as required in HAVA.

**15. Oregon**

In compliance with HAVA Section 254(a)(7), in using any requirements
payment, Oregon will maintain expenditures of the State for activities
funded by the payment at a level equal to or greater than the level of
Title III expenditures in State FY 2000.

The intent of funding provided under HAVA is to pay for new or enhanced
efforts, not to sup­plant existing funding at the state and county level.
It is therefore important to note that the pro­jected HAVA budget is
based on a critical assumption that the state and counties will maintain
this foundation of election operating expenditures at existing levels.
Without this foundation, the short-term infusion of HAVA funds would not
be sufficient to maintain the new state election environment in the
long-term.

**16. Pennsylvania**

Though the Commonwealth appreciates the commitment that the Federal
government has made to election assistance both by enacting HAVA and
providing funding to the States to allow them to fully realize the
ultimate goals of HAVA -- a free and open election process for all
citizens -- the Commonwealth realizes that it still has the primary
responsibility to maintain the programs that it was funding prior to
November 2000 and to develop new and innovative programs to make the
Commonwealth a leader in election administration.

To this end, in using its requirements payment, the Commonwealth plans
to maintain expenditures of the State for activities funded by the
payment at a level no less than the level of such expenditures in FY
1999-2000. In addition, the Commonwealth plans to ask each county to
file an annual report to assure the Commonwealth that each county has
complied with the requirement of HAVA that the State maintain its
pre-November 2000 effort as a condition of receiving funds under Title
II of HAVA.

**17. South Carolina**:

Consistent with HAVA §254(a)(7), in using any requirements payment,
South Carolina will maintain expenditure of the State for activities
funded by the payment at a level equal or greater than the level of such
expenditures in State Fiscal Year 2000.

The SEC has taken several reductions to the base budget since 2000. To
absorb those reductions, operating expenses have been cut drastically by
condensing office space, leaving vacant positions unfilled, and a
reduction in force plan was implemented which eliminated one full time
employee.

During the 2003 legislative session, the South Carolina General Assembly
did not provide any funds for the 2004 Statewide Primaries. However, all
HAVA funds will be maintained completely separate and no HAVA funds will
be used to offset either the general fund or primary election fund
shortfalls.

The State budget represents only a small portion of the statewide
aggregate operating budget expenditures needed to sustain elections in a
given fiscal year, since by South Carolina law the great majority of
election administration resources are provided at the county level.

South Carolina\'s 46 local election office budgets typically support
year-round core staff and operating expenses for continuous functions
such as voter registration, information services, and IT support. In
addition, county registration boards and election commissions provide
the significant increase in funding associated with each specific
election -- for Poll Managers, temporary office staff, ballot
production, mass mailings, election-day support (including personnel,
equipment, and supplies), etc. In some cases, key election support
resources provided at the county level may not even be included within
election office budgets, but are provided through other county agencies
and donations.

It is therefore important to note that the projected HAVA budget set
forth in *Chapter 6: Proposed State Budget* is based on the critical
budget assumption that the State will mandate that this foundation of
county-funded election operations be maintained at existing levels.
Without this foundation in place, the short-term infusion of funds HAVA
provides would not be sufficient to maintain new State election
environment in the long term.

**18. Tennessee:**

The Secretary of State will work with the Commissioner of Finance and
Administration and legislative leaders to ensure that the expenditures
of the State for the activities funded by the payments remain at a level
not less than the level of such expenditures maintained by the State for
the fiscal year ending prior to November 2000. There will be a
Maintenance of Effort requirement for each county receiving direct funds
from HAVA.

**19. Utah**

  ---------------------------------------------------- ------------------
  **Item**                                             **Amount**

  25% of Voter Registration Coordinator=s salary       \$6,000

  25% of Voter Outreach Coordinator=s salary           \$6,000

  Voter Registration Forms                             \$14,630

  Mailings                                             \$2,283

  Other Office Expenses (phone, etc.)                  \$1750

  Voter Information Pamphlet                           \$305,370

  **Total Maintenance Of Effort**                      **\$336,033**
  ---------------------------------------------------- ------------------

The documentation on how the State arrived at this maintenance of effort
is on file with the State Elections Office.

From Section 2 of the State Plan

> A. The State Plan Committee will meet twice each calendar year to
> review all payments made out of the fund.
>
> B. A county may request monies from the fund only for the purpose of
> purchasing new equipment when the number of registered voters
> increases. Requests must be made in writing to the Lt. Governor and
> approved by the State Plan Committee. The State Plan Committee will
> oversee all payments made from the fund.

C.  Counties must do the following in order to receive equipment
    purchased by the State:

    1.  Ensure the physical accessibility of polling places based on the
        survey provided by the Lt. Governor's Office or a comparable
        survey.

    2.  Comply with title III of the Help America Vote Act.

    3.  Appropriate at least the same amount of funding based on their
        budget during the 2000 general election year for each subsequent
        general election year. This requirement is in place until all
        federal monies in the election fund are spent.

        (Other requirements not included)

**20. Virgin Islands:**

In compliance with HAVA Section 254(a)(7), in using any requirements
payment, the Virgin Islands will maintain expenditures of the territory
for activities funded by the payment at a level equal to or greater than
the level of Title III expenditures in the territory for FY 2000 or \$1,
401, 300.00. The intent of funding provided under HAVA is to pay for new
or enhanced efforts, not to sup­plant existing funding at the territorial
level. It is therefore important to note that the pro­jected HAVA budget
is based on a critical assumption that the state and counties will
maintain this foundation of election operating expenditures at existing
levels. Without this foundation, the short-term infusion of HAVA funds
will not be sufficient to maintain the new territorial election
environment in the long-term.

**21. Virginia**

In accordance with HAVA section 254 (a)(7), Virginia will maintain
expenditures of the State for activities funded by the Requirements
Payment at a level equal to or greater than the level of such
expenditures in State FY00. The total spent on meeting the specific
requirements of Title III in that FY was \$778,994. This amount is a
fraction of the total amount spent on elections by the State.

In addition, in Virginia, much of the expense of both federal and state
elections is born by the 134 localities. The cost of poll workers' pay
and training, voting equipment, ballot generation and absentee ballot
processing all are costs born by local governments. Virginia will ensure
that localities continue to maintain levels of expenditures sufficient
to fund elections and that the localities will not use HAVA funds for
routine registration- and election-related expenses. As discussed in
Section 2 of this Plan, some payments to localities may occur on a
reimbursement basis for the purchase of voting equipment; SBE will make
no payments to cover the costs associated with the "normal" business of
Virginia's local registration and election offices.

**22. West Virginia:**

Consistent with HAVA §254(a)(7), in using any requirements payment, West
Virginia will maintain expenditures of the State for activities funded
by the payment at a level equal to or greater than the level of such
expenditures in State FY 2000 of \$42,329, which ended June 30, 2000.
These funds represent the portion of the expenditures made by the
Secretary of State during fiscal year 2000 for activities carried out by
the elections division that are consistent with the activities to be
funded by the requirements payment.

As in many states, the majority of all election expenditures are
incurred by individual county budgets. Statewide elections occur every
even year in conjunction with the federal elections. In addition, the
counties are responsible for special elections for county issues such as
levies and bonds. West Virginia's 55 county budgets typically support
year-round core staff and operating expenses for continuous functions
such as voter registration, information services, and technical support.
Furthermore, the counties provide the significant increase in funding
associated with each specific election such as poll workers, temporary
office staff, and ballot production.

It is therefore important to note that the projected HAVA budget set
forth in Section Six of this Plan is based on the assumption that the
counties will also maintain election expenditures at existing levels.

**23. Wisconsin**

Wisconsin will maintain the level of state expenditures for HAVA
requirements at the same or greater level as the State spent in the
fiscal year (FY 2) ending before the November 2000 election. In that
fiscal year, the State Elections Board spent no funds on activities
related to HAVA requirements. The agency's election-related budget
consisted of two Full Time Equivalent (FTE) elections specialists. These
positions have been maintained despite a reduction in the agency
staffing level as a result of the current fiscal crisis.

The positions will continue to be funded with state funds. All HAVA
payments will be used to augment the preexisting level of state funding
for election administration. Any payments distributed to local
government will be conditioned on a continuing maintenance of effort to
ensure that federal funds do not replace existing local government
expenditures on election administration.

[^1]: The relevant portion of the section implies that the State is a
    separate entity from the local and government entities which may
    geographically be within the boundaries of the State.

[^2]: HAVA §901 reads in its entirety: 'In this Act, the term "State"
    includes the District of Columbia, the Commonwealth of Puerto Rico,
    Guam, American Samoa, and the United States Virgin Islands.' 42
    U.S.C. 15541.

[^3]: HAVA §253(b)(1): "The State has filed with the Commission a State
    plan covering the fiscal year which the State certifies" and §254(a)
    describes what must be included in the State plan.

[^4]: §254(a)(2): "How the State will distribute and monitor the
    distribution of the requirements payments to units of local
    government or other entities in the State for carrying out the
    activities described in paragraph (1)..."

[^5]: §254(a)(8): "How the State will adopt performance goals and
    measures that will be used by the State to determine its success and
    the success of units of local government in the State in carrying
    out the plan..."

[^6]: See Colorado, from Appendix A.

[^7]: See Delaware, from Appendix A.

[^8]: See Tennessee, from Appendix A, which reads in whole: "The
    Secretary of State will work with the Commissioner of Finance and
    Administration and legislative leaders to ensure that the
    expenditures of the State for the activities funded by the payments
    remain at a level not less than the level of such expenditures
    maintained by the State for the fiscal year ending prior to November
    2000. There will be a Maintenance of Effort requirement for each
    county requiring direct funds from HAVA."

[^9]: See South Dakota comments on proposed policy:
    http://www.eac.gov/News/docs/2008-meetings-moe-comments-south-dakota-comments.doc/attachment_download/file