IS AMERICA READY TO VOTE? 

ELECTION READINESS BRIEFING PAPER

April 2004 (July 2004 Update Appended)

Office of Civil Rights Evaluation 

U.S. Commission on Civil Rights
 

Contents 

Political Participation in America................................................................................................... 1 

Previous USCCR Findings and Recommendations on Election Vulnerabilities............................ 6 

Accountability and Standards ..................................................................................................... 7 

Provisional Voting ...................................................................................................................... 8 

Voter Registration and Lists ....................................................................................................... 8 

Voter Identification..................................................................................................................... 9 

Poll Worker Training and Voter Education................................................................................ 9 

Reinstatement of Ex-Felon Voting Rights................................................................................ 10 

Accessibility for Disabled and Limited English Proficient Voters........................................... 10 

Enforcement.............................................................................................................................. 11 

Equipment................................................................................................................................. 12 

The Help America Vote Act of 2002: A Federal-State Partnership ............................................. 12 

The Federal Role in Helping America Vote ............................................................................. 13 

Funding ................................................................................................................................. 13 

Guidance ............................................................................................................................... 17 

Enforcement.......................................................................................................................... 18 

The Status of Federal Implementation.................................................................................. 19 

The State Role in Helping America Vote ................................................................................. 22 

Minimum Technology Standards.......................................................................................... 23 

Provisional Voting ................................................................................................................ 25 

Statewide Voter Registration Lists ....................................................................................... 26 

Voter Identification............................................................................................................... 28 

Complaint Procedures........................................................................................................... 29 

National Election Reform Inadequacies and Potential Pitfalls ..................................................... 30 

Data Collection ......................................................................................................................... 33 

Planning Tools .......................................................................................................................... 33 

Election Certification................................................................................................................ 34 

Voter Education and Poll Worker Training.............................................................................. 34 

Reinstatement of Ex-Felon Voting Rights................................................................................ 35 

Preventive Measures ................................................................................................................. 38 

Recording the Nation’s Intent: Equipment ................................................................................... 40 

Effects of Ballot Design and Engineering on Election Outcomes............................................ 41 

Equipment Forecast for November 2004.................................................................................. 43 

County Equipment Forecast.................................................................................................. 44 

State Equipment Forecast ..................................................................................................... 44

System Overload: Electronic Equipment Limitations .............................................................. 45 

Vote Verification and Audit Capability................................................................................ 47 

Networked State Registration Rolls...................................................................................... 50 

Technology Assisting Voters with Disabilities..................................................................... 51 

Language Capability ............................................................................................................. 51 

Initiatives to Improve Security, Audit Capacity, and Access ................................................... 52 

Conclusion .................................................................................................................................... 54 

Addendum: Federal and State Voting Reform Progress—July 2004 ............................................56
 1

Is America Ready to Vote? 

The vitality of America’s democracy depends on the fairness and accuracy of America’s 

election. Over two centuries our country has broadened the right to vote and sealed that 

right in law, making our government more accountable to the people, and more 

representative of the people. 

When problems arise in the administration of elections we have a responsibility to fix them. 

Every registered voter deserves to have confidence that the system is fair and elections are 

honest, that every vote is recorded, and that the rules are consistently applied. 

–President George W. Bush, 

upon signing the Help America Vote Act, 

 October 29, 2002

With the 2000 presidential election, hanging, dimpled, and pregnant chads, and butterfly ballots 

entered the common lexicon. Election officials blamed substandard equipment, inadequate funds, 

and unreasonable deadlines for inaccurate registration rolls and other barriers that prevented 

many Americans from voting or having their vote count. In the four years since, federal and state 

legislatures, by statements and in some cases action, elevated elections as a public policy 

priority. Their efforts to do so will be put to the test in November 2004. Are voters who were 

disenfranchised in 2000 still vulnerable in 2004? Was there actual reform or, for the most part, 

talk and plans? If there was reform, will it minimize errors and correctly count ballots so that 

outcomes reflect the intent of the populace? Were laws passed and, more importantly, 

implemented to help overcome voting problems? Did local and national leaders fulfill their 

pledge to educate and enfranchise voters? On April 9, 2004, the U.S. Commission on Civil 

Rights (Commission or USCCR) will convene technical experts and others for a briefing that 

will offer answers to these questions. 

POLITICAL PARTICIPATION IN AMERICA 

The right of voting for representatives is the primary right by which other rights are 

protected. To take away this right is to reduce a man to slavery, for slavery consists in 

being subject to the will of another, and he that has not a vote in the election of 

representatives is in this case.1

The 15th Amendment to the Constitution was intended to eliminate voting barriers based on 

race, creed, color, or previous condition of servitude. In theory, its ratification in 1870 was a 

monumental civil rights development; in practice, minorities would continue to face obstacles to 

voting for the next century. The primary reason was that states circumvented the intent of the 

 

1

 Thomas Paine, “Dissertation on First Principles of Government,” in Moncure D. Conway, ed., The Writings of 

Thomas Paine, vol. 3 (1895), p. 267, originally published in 1795. 
 2

15th Amendment by passing laws and allowing local practices that guaranteed blacks would 

remain disenfranchised. Making matters worse, Congress and the courts remained virtually silent 

during the ensuing decades. 

Prior to the Civil War, only six states permitted black men to vote.2 After the war, passage of the 

13th Amendment abolishing slavery, and the 14th Amendment providing equal protection of the 

laws to all citizens, did little to end discrimination. Southern and border states, determined to 

preserve a white electorate, began immediately to erode guarantees of the 15th Amendment and 

passed myriad laws to eliminate the possibility of blacks tipping the balance of power through 

bloc voting. By the beginning of the 20th century, the hard won suffrage rights of blacks had 

practically been nullified. Perhaps the most invidious barriers to the right to vote were the 

seemingly neutral restrictions developed by states that had debilitating and devastating results on 

black voter registration.3

States adopted diverse practices and techniques to disenfranchise blacks, most of which centered 

on two important weapons: intimidation and arbitrary powers of local voter registrars.4 Law 

enforcement officials, sometimes no more than deputized Ku Klux Klansmen, arrested civil 

rights workers on baseless charges, and mistreated them while in custody. Private citizens, 

complicit with police, also shot into or firebombed homes, churches, and other buildings; and 

abducted, tortured, and assassinated civil rights workers and blacks who dared to attempt to 

register. They also threatened economic insecurity; store owners refused to sell to blacks, banks 

declined credit, and property owners vowed to evict them from their homes. Local voting 

registrars manipulated the registration process to favor white applicants and eliminate blacks. 

One strategy was submission to literacy tests. 

From the multitude of available instances of discrimination, a few have been chosen as 

illustrative of the double standard used. Six blacks with doctorates were ruled illiterate in 

Alabama and five black teachers, three of whom had master’s degrees, were judged too 

illiterate in a Mississippi city in which no whites ever failed the examination.5

 

Registrars helped whites to fill out applications, but not blacks, and rejected blacks’ applications 

on trivial bases such as underlining rather than circling a designation. They also refused to allow 

rejected applicants to review the bases for their decisions. Other laws required interpreting the 

Constitution and showing good character. 

Mississippi whites were often given the following section to interpret: Section 8: “All 

elections by the people shall be by ballot.” Blacks have been confronted with sections 

such as the [following]: Section 182: “The power to tax corporations and their property 

shall never be surrendered or abridged by any contract or grant to which the state or any 

 

2

 Jaren D. Wilcoxson, “Miller v. Johnson: An Improper Emphasis of Form Over Substance,” Boston University Law 

Review, vol. 76 (October 1996), p. 771. 3

 Ibid., p. 774. 

4

 Harrell R. Rodgers, Jr. and Charles S. Bullock III, Law and Social Change: Civil Rights Laws and Their 

Consequences (McGraw-Hill, Inc., 1972), p. 18 (hereafter cited as Rodgers and Bullock, Law and Social Change). 5

 U.S. Commission on Civil Rights, Report of the U.S. Commission on Civil Rights, 1959, p. 80. 
 3

political subdivision thereof may be a party, except that the legislature may grant 

exemption from taxation in the encouragement of manufacturers and other new 

enterprises of public utility extending for a period of not exceeding five years, the time of 

such exemptions to commence from date of charter if to a corporation; and if to an 

individual enterprise, then from the commencement of work; but when the legislature 

grants such exemptions for a period of five years or less, it shall be done by general laws, 

which shall distinctly enumerate the classes of manufactures and other new enterprises of 

public utility entitled to such exemptions, and shall prescribe the mode and manner in 

which the right to such exemptions shall be determined.”6

Some registrars accepted as a demonstration of good character signatures from registered voters, 

who in some counties were all white. The state of Louisiana excluded on character grounds 

anyone who participated in sit-ins or civil rights demonstrations. States also redrew district lines 

to eliminate black majorities, changed some offices from elected to appointed, required proof of 

property ownership, and changed seats from district to at-large so that entire counties 

(proportionately more whites) determined outcomes.7 

The spirit of laws passed in the late 1950s and 1960s was good. The 1957 Civil Rights Act 

allowed the Department of Justice (DOJ) to seek injunctive relief and enabled blacks to 

circumvent the remiss tactics of state voting officials. It also authorized nonjury trials for 

violators. The 1960 Civil Rights Act allowed federal judges to register eligible blacks who had 

been rejected by local officials. It also gave federal prosecutors access to voting records and 

required that voting data be retained for 22 months following every election. Later, Title I of the 

Civil Rights Act of 1964 forbade rejection of applicants for insignificant errors on registration 

forms and presumed that anyone who had a sixth-grade education was literate. One of the last 

changes in law was eliminating poll taxes, which denied the ballot from poor of all races. As late 

as the 1960s, poll taxes still existed and were finally banished under the 24th Amendment to the 

Constitution. However, these laws fell short of their promises when states continued to 

circumvent them. 

The Civil Rights Acts of 1957, 1960, and 1964 . . . were unsuccessful attempts to compel 

state registration officials to apply their state voting standards fairly. Progress under these 

Acts was painfully slow, partly because of the intransigence of state and local officials 

and partly because of the delays inherent in the case-by-case litigation required under 

these statutes.8

Black enfranchisement was further obstructed by judges who procrastinated for months before 

conducting hearings, badgered civil rights attorneys and witnesses, and took months to render 

decisions during which times discrimination continued.9

 Obstinate and determined local officials, 

aided by judges, police and private citizens, had rendered case-by-case prosecution impotent. 

 

6

 U.S. Commission on Civil Rights, Voting in Mississippi, 1965, p. 14. 7

 Rodgers and Bullock, Law and Social Change, p. 39. 

8

 U.S. Commission on Civil Rights, The Voting Rights Act, 1965, p. 8. 9

 Rodgers and Bullock, Law and Social Change, p. 28. 
 4

Although judicial and legislative attempts were made to curtail the practices employed by the 

states in the 1940s and 1950s,10 it was the Voting Rights Act of 1965 (VRA) that became the 

primary tool for equality in the voting booth.11 In general, the 1965 act ensured that the same 

literacy standards would apply to whites and blacks and reduced acceptable suffrage 

requirements to age, residence, and criminal record. The Supreme Court decided that literacy 

tests were unfair. The VRA authorized federal voting examiners to bypass prosecution of 

individual complaints and, as a result, eliminate systemic discrimination. The VRA also gave 

DOJ authority to send poll watchers to counties that had experienced problems. 

Specifically, Section 2 of the VRA prohibits minority vote dilution through intentional tactics 

and legislation aimed at weakening the voting strength of minorities.12 Section 5 outlines the 

federal role in election oversight by requiring federal approval of state changes in voting 

procedures in areas that have a history of discrimination against racial and ethnic minorities. It is 

designed to prevent new forms of discrimination from taking effect that will diminish minority 

voting opportunities or rights. Section 5 also permits the federal government to send examiners 

to covered jurisdictions to ensure that registered voters are allowed to vote and that all votes are 

properly counted. 

The VRA has been amended since its passage to broaden its coverage and strengthen its 

effectiveness. In 1975, an amendment permanently restricted the use of tests and devices for 

voter registration nationwide.13 The law is applied today to prevent states and local jurisdictions 

from instituting at-large elections in majority-white jurisdictions, or from racial gerrymandering 

of electoral districts.14 The 1975 amendments also stipulate rights for language minorities, 

mandating bilingual ballots and oral language assistance. In 1983, Congress again amended VRA 

to clarify that the proof of discriminatory intent is not required under Section 2 claims, and thus 

validated disparate impact claims. 

Regardless of the terms of civil rights laws, their effects are muted in the absence of sufficient 

staff to enforce them.15 VRA provides for federal observers to monitor procedures in polling 

places and at sites where ballots are counted. Observers are assigned to locations where it is 

likely that minority voters will be disenfranchised. The determination that minority voters may be 

 

10 See, e.g., Smith v. Allwright, 321 U.S. 649 (1944); Brown v. Bd. of Educ., 347 U.S. 483 (1954) (while this case 

did not deal directly with voting, it did strengthen the equal protection clause of the Constitution, spurring the voting 

rights movement); Civil Rights Act of 1957, 42 U.S.C. §§ 1971, 1975–1975e, 1995 (1994); Civil Rights Act of 

1960, 42 U.S.C. §§ 1971, 1974–1974e, 1975d (1994); and Civil Rights Act of 1964, 42 U.S.C. §§ 1971, 1975a–

1975d, 2000a–2000h-6 (1994). 

11 42 U.S.C. §§ 1971, 1973–1973bb-1 (1994). Advocates of states rights challenged the constitutionality of the 

VRA, but the Supreme Court upheld the legislation in South Carolina v. Katzenbach, 383 U.S. 301 (1966). 

12 Section 2 has most often been applied to redistricting and at-large electoral systems, but it applies to any practice 

that dilutes minority voting rights. 

13 89 Stat. 400, 1975 (P.L. 94-73). 

14 Leslie W. Gladstone, analyst, American National Government, Government Division, Congressional Research 

Service, “Civil Rights Protection in the United States: Brief Summaries of Constitutional Amendments, Federal 

Laws and Executive Orders,” 93-148 GOV, Feb. 2, 1993, p. 10. 

15 USCCR, Political Participation, p. 157. 
 5

disenfranchised is made by the Voting Rights Section of DOJ’s Civil Rights Division (CRD).16

In 1963, CRD employed 20 attorneys, but after the Voting Rights Act passed, the government 

sent 50 attorneys to patrol the South during the 1966 general elections. Altogether, some 600 

federal officials were assigned to Southern states to enforce VRA provisions. During that year 

and the following one combined, 1,500 federal observers attended elections in the South. The 

federal government, cognizant of the barriers to enfranchisement, was duty-bound to apply 

resources to eliminating them.17

By contrast, in 2001, the Voting Rights Section employed 36 attorneys,18 and in the previous 

year DOJ had assigned 652 federal observers to monitor elections in 24 counties in 12 states.19 In 

November 2002, 432 federal officials, including 108 DOJ attorneys, monitored elections in 26 

counties in 14 states (see table 1).20 The agency has not yet announced the level of resources it 

will devote to election monitoring in November 2004. DOJ considers many factors in deciding 

how many observers it will assign and where they will monitor. However, in the 1960s, as today, 

commitment of resources is at least one outward expression of federal priorities. 

Table 1. Federal Election Monitors by States in 2000 and 2002 

Year Number of Federal Observers State 

2000 652 

Alabama 

Arizona 

California 

Georgia 

Louisiana 

Michigan 

Mississippi 

New Jersey 

New Mexico 

New York 

Texas 

Utah 

2002 432 

Arizona 

California 

Connecticut 

Florida 

Georgia 

Michigan 

Mississippi

Missouri 

New Jersey 

New Mexico 

New York 

Pennsylvania 

Texas 

Utah 

Source: U.S. Department of Justice, Civil Rights Division, Voting Section, “Federal Examiners and Federal Observers,” July 2, 2003, 

<http://www.usdoj.gov/crt/voting/examine/activ_exam.htm> (last accessed Apr. 1, 2004); U.S. Department of Justice, “Fact Sheet: Protecting 

Voting Rights and Preventing Election Fraud,” November 2002, <http://www.usdoj.gov/opa/pr/2002/November/ 02_at_ 641.htm> (last accessed 

Apr. 1, 2004). 

 

16 U.S. Department of Justice, Civil Rights Division, Voting Section, “Federal Examiners and Federal Observers,” 

July 2, 3003, <http://www.usdoj.gov/crt/voting/examine/activ_exam.htm> (last accessed Apr. 1, 2004) (hereafter 

cited as DOJ, “Federal Examiners”). 

17 USCCR, Political Participation, p. 157. 

18 U.S. Department of Justice, “Attorney General Ashcroft’s News Conference: Voting Rights Initiative,” Mar. 7, 

2001, <http://usinfo.state.gov/usa/civilrights/ashc0307.htm> (last accessed Apr. 1, 2004). 

19 DOJ, “Federal Examiners.” 

20 U.S. Department of Justice, “Fact Sheet: Protecting Voting Rights and Preventing Election Fraud,” November 

2002, <http://www.usdoj.gov/opa/pr/2002/November/02_at_641.htm> (last accessed Apr. 1, 2004); U.S. 

Department of Justice, “Federal Observers and Justice Department Personnel to Monitor General Election in States 

Across the Nation,” Nov. 4, 2002, <http://www.usdoj.gov/opa/pr/2002/November/02_crt_640.htm> (last accessed 

Apr. 1, 2004). 
 6

Some consider VRA the most effective civil rights law ever enacted and contend that the 

progress made, particularly as a result of redistricting efforts in the last decade, has been 

astonishing. Most historians agree that VRA increased the percentage of African Americans of 

voting age who registered to vote, and ultimately the numbers of African Americans elected to 

office. However, despite visible gains, other obstacles remain. In the era following its passage, 

civil rights groups have continued to challenge voting practices, such as at-large systems, which 

dilute the effect of the minority vote, and push for redistricting.21 They have challenged and 

effectively removed old grandfather clauses and other forms of discrimination; yet, the 2000 

elections proved that much remains to be done so that the rights of every eligible American are 

protected. For example, the disenfranchisement of Florida’s voters fell most harshly on black 

voters who, statewide, based on county-level statistical estimates, were nearly 10 times more 

likely than nonblack voters to have their ballots rejected.22

Voting rights history provides a relevant basis for resolving today’s election problems. Despite 

acknowledged technological difficulties, many of the problems in 2000, as through history, were 

traced to faulty registration procedures, variance in duties carried out by local election officials, 

and lack of local poll worker training. This paper will demonstrate that many of the problems 

that the Commission previously cautioned should be corrected yet prevail resonate with 

historical disenfranchisement, and require the focused attention of national, state, and local 

officials. Unless the government acts now, many of those previously disenfranchised stand to be 

excluded again. 

PREVIOUS USCCR FINDINGS AND RECOMMENDATIONS ON 

ELECTION VULNERABILITIES 

In 2001, the Commission examined evidence from the controversial 2000 elections, as well as 

recommendations for change, and drew conclusions about the federal government’s 

responsibility to ensure voting rights for all Americans. Based on reports of widespread voter 

disenfranchisement in Florida, the Commission conducted an extensive public investigation into 

allegations of voting irregularities in that state. During three days of hearings and sworn 

testimony from witnesses, including state officials, local election officials, county supervisors, 

poll workers, and registered voters, the Commission probed accounts of problematic machinery, 

inaccessible polling places, and inexperienced poll workers. Fact-finding included examination 

of subpoenaed documents from witnesses who produced more than 118,000 pages of evidence. 

The Commission subsequently issued a report documenting its findings, Voting Irregularities in 

Florida During the 2000 Presidential Election, and made recommendations applicable to Florida 

and the nation.23 In testimony before the Senate Committee on Rules and Administration, the 

Commission urged Congress to consider its recommendations from the Florida report and to 

 

21 Although this paper does not address the issue of redistricting, it should be recognized as a critical component of 

voting equality. 

22 U.S. Commission on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election, June 

2001, executive summary (hereafter cited as USCCR, Voting Irregularities). 23 Ibid. 
 7

legislatively articulate the duties of federal and state governments to promote the exercise of the 

right to vote.24 

After collecting additional research and consulting other organizations that also studied the 

election, the Commission issued a subsequent report, Election Reform: An Analysis of Proposals 

and the Commission’s Recommendations for Improving America’s Election System.

25 In it, the 

Commission presented a comprehensive list of 18 recommendations for federal election reform 

designed specifically to protect the right to vote and have that vote counted. 

The recommendations centered on assuring polling place access for all voters and offered advice 

for holding officials more accountable and rendering systems that register voters and record their 

intent more procedurally sound. Key recommendations included establishing a higher level of 

accountability for elections, developing national equipment and procedural standards, requiring 

provisional ballots, providing access for individuals with disabilities and limited English 

proficiency, reinstating voting rights for felons, and improving poll worker training and voter 

education. Congress subsequently included many of the Commission’s recommendations in a 

national reform bill that eventually became law—the Help America Vote Act of 2002.26

Following is a more detailed summary of some of the Commission’s recommendations. 

Accountability and Standards 

In both its Florida and national studies, the Commission identified as a key impediment to the 

voting process the sometimes diffused and generally unclear delineation of authority and 

accountability for election problems. The fact that states manage elections allows for variable 

voting procedures and processes, leading to differential voter experiences and election outcomes. 

Moreover, accountability is often shared between state and local officials, and most states lack 

clear standards for the conduct of elections. In Florida, for example, the Commission found no 

uniformity in the Election Day responsibilities across the state’s 67 counties.27 

Thus, to foster uniformity, the Commission recommended that the federal government establish 

minimum standards for equipment, error rates, absentee ballots, list maintenance, identity 

requirements, vote recounting, voter education, and reinstatement of felon voting rights. It said that 

mandatory standards should apply to provisional ballots, ballot kick-back features in voting 

equipment, the collection of election statistics, language assistance, and accessibility of polling 

places and voting materials.28 In Florida, the Commission recommended that the secretary of state 

 

24 Mary Frances Berry, chairperson, U.S. Commission on Civil Rights, testimony before the Committee on Rules 

and Administration, United States Senate, June 27, 2001 (hereafter cited as Berry testimony). 

25 U.S. Commission on Civil Rights, Election Reform: An Analysis of Proposals and the Commission’s 

Recommendations for Improving America’s Election System, November 2001 (hereafter cited as USCCR, Election 

Reform). 

26 Help America Vote Act, Pub. L. No. 107-252, 116 Stat. 1666 codified at 42 U.S.C. §§ 15301–15545 (2002). 

27 Berry testimony, p. 3. 

28 USCCR, Election Reform, pp. 40–41. 
 8

be legislatively required to ensure that the state is ready for elections, specifically that adequate 

resources are available, poll workers are trained, and voters are educated on voting processes.29 

Provisional Voting 

The 2000 elections revealed a widespread, but easily preventable, obstacle to enfranchisement: 

erroneous voter registration lists. Between 2 million and 3 million votes were lost in 2000 due to 

clerical and administrative errors on lists, despite improvements resulting from the National 

Voter Registration Act of 1993.30 This problem could have been easily resolved with the use of 

provisional ballots, which would have enabled individuals claiming eligibility to cast a vote that 

would be counted upon verification. In 2000, only 19 states offered provisional ballots. In 

Florida, even though voting by affidavit was an option during the 2000 elections, it was not 

uniformly offered or available in every precinct, nor were poll workers or voters made aware of 

this provision.31

The Commission urged Congress to pass legislation requiring every state to use provisional 

ballots. Furthermore, the Commission said that such ballots should be verified and counted 

immediately after an election to ensure that they were represented in the cumulative results.32 In 

addition, voters should have the right to an immediate appeal of a discarded ballot with 

resolution prior to vote tabulation.33

Voter Registration and Lists 

The Commission found that registration deadlines vary greatly by state. In 2000, half of states 

required registration a month before an election; 19 states required registration 10 to 28 days 

before an election; six states allowed same-day registration; and one state did not require 

registration.34 The 44 states requiring early registration could not maintain accurate lists of 

eligible voters. The startling display of ineptitude caused millions of names to be erroneously 

purged or incorrectly entered on registration lists across the nation, and as such, prevented 

eligible people from voting. 

In Florida specifically, many voters arrived at the polls only to be told that their names were not 

on the registration list or that their voter applications contained errors. They were not given any 

opportunity to appeal the alleged errors or to challenge their absence on the rolls. Nor were poll 

workers able to communicate with election officials to verify eligibility or check the accuracy of 

the lists.35

 

29 USCCR, Voting Irregularities, p. 107. 30 National Voter Registration Act of 1993, Pub. L. No. 103-31, 42 U.S.C. § 1973gg (1993). 

31 Ibid., pp. 114–15. 

32 USCCR, Election Reform, p. 49. 

33 USCCR, Voting Irregularities, p. 102. 34 USCCR, Election Reform, p. 50. Adds up to 51 because it includes the District of Columbia. 35 USCCR, Voting Irregularities, p. 102. 
 9

The Commission found that the need for advanced registration and the miscommunication 

between state and local lists could be eliminated with real-time, statewide registration data 

systems. In addition, states should establish a toll-free telephone number that would allow voters 

to access their registration status and polling location well ahead of Election Day.36 The 

Commission further recommended that states with early registration deadlines should examine 

the procedures of states that allow Election Day registration to determine what best practices 

could be implemented.37 Moreover, as noted above, the Commission found that the use of 

provisional ballots could compensate for list inaccuracies until they were resolved. 

Voter Identification 

The Commission found that states established vastly different requirements for voter 

identification at the polls. Thirty states did not require identification, 14 states required some 

form of identification, and seven states reserved the right to require identification. Acceptable 

forms of identification varied and for some entailed a signature and others a state-issued photo 

ID, identity-bearing document, or a combination of items.38 

Whether states had defined voter identification requirements or not, voters nationwide 

complained that specific groups, namely minority and immigrant voters, were singled out to 

produce identification. The Commission recommended that the federal government establish 

uniform national guidelines and that poll workers be adequately trained on requirements. 

Moreover, the Commission said that states must allow individuals who cannot produce valid 

identification to cast a provisional ballot. 

Poll Worker Training and Voter Education 

Many of the election problems that occurred could have been resolved immediately, if not 

prevented entirely, had poll workers been sufficiently trained and voters educated. This was 

particularly acute in Florida, where the Commission found poll workers who were unaware of voter 

rights and state procedures for assisting voters, as well as training inconsistencies from one county 

to the next. In Florida, the Commission also found limited financial support for voter education, 

resulting in inconsistent outreach to first-time voters and those with special needs.39 

The Commission recommended that poll workers be trained to use all measures available under 

state law to enable registered voters to vote, including voting by provisional ballot, affidavit, and 

language and special needs assistance.40 It also recommended that the state provide funds to 

educate voters on how to cast a vote properly, using means including public service 

 

36 Ibid., p. 103. 

37 USCCR, Election Reform, p. 50. 38 Ibid., pp. 52–53. 

39 USCCR, Voting Irregularities, p. 107. 40 Ibid., p. 103. 
 10

announcements and advertisements.41 Nationwide, the Commission noted the need for minimum 

federal voter education and poll worker training standards to cultivate consistency across counties 

and states. 

 

Reinstatement of Ex-Felon Voting Rights 

Although felon disenfranchisement figured prominently in Florida, ex-felons and individuals 

wrongly categorized as such were prevented from voting in other states across the country. In 

2000, every state except two denied prisoners the right to vote; 29 states prohibited individuals on 

probation from voting; 32 states prohibited parolee voting; and 14 states prohibited some, if not all, 

ex-felons from voting.42 The process for reinstating voting rights likewise varies by state, but is 

usually cumbersome, and ex-felons are seldom informed of their right to re-enfranchisement. 

More than 36 percent of the total disenfranchised population is African American, and 13 

percent of all African American men are disenfranchised due to a felony conviction. The 

Commission, concerned about the disparate impact of state disenfranchisement laws on minority 

voters, recommended that all states adopt legislation to restore the voting rights of former felons 

who have completed their sentences.43 

Accessibility for Disabled and Limited English Proficient Voters 

Federal law establishes that polling places must be accessible to individuals who have 

disabilities. It also stipulates that jurisdictions with large non-English-speaking populations must 

provide voting materials in common languages. Nonetheless, in the 2000 elections, thousands of 

voters found polling places and voting materials inaccessible and were thus disenfranchised. In 

Florida, for example, the Commission found that many voters who use wheelchairs could not 

easily access polling places, and many were turned away. Others with visual impairments had to 

have their ballots read to them because accessible technology was not available, resulting in a 

loss of the right to cast a vote in private. Likewise, many non-English-speaking voters could not 

cast a ballot because they were not provided legally required assistance.44 

The Commission recommended that the federal government establish standards for alternate 

language materials and adopt quality assurance procedures.45 Likewise, the Commission urged 

the federal government to develop accessibility standards for persons who have disabilities and 

provide adequate funds to ensure that all polling places are accessible.46 In addition, the 

Commission recommended that federal equipment standards include programmable technology 

 

41 Ibid., p. 107. 

42 USCCR, Election Reform, pp. 56–57. 43 Ibid., p. 57. 

44 USCCR, Voting Irregularities, pp. 112–13. 

45 USCCR, Election Reform, p. 54. 46 Ibid., p. 55. 
 11

that facilitates multiple languages and access for disabled voters. Federal law should require 

states to report to the Department of Justice on their policies and procedures that ensure language 

and physical accessibility. 

At the state level, the Commission recommended that poll workers be trained on providing 

required assistance to voters with disabilities and limited English proficiency. States should 

ensure that there is uniformity across precincts and certify, at least 30 days before an election, 

that polling places are accessible.47 

Enforcement 

In its examination of Florida, the Commission found that disenfranchisement most harshly 

affected African American voters, who were nearly 10 times more likely than nonblacks to have 

their ballots rejected and were often prevented from voting because their names were 

erroneously purged from registration lists. Moreover, poor communities with large minority 

populations were more likely to use voting equipment with high ballot spoilage rates.48 

Despite the obvious disparities, evidence suggests that voting rights law enforcement is 

haphazard, and responsibility for elections is often decentralized, thus obscuring accountability. 

The Commission recommended that the federal government, specifically the Department of 

Justice, strengthen its enforcement efforts and initiate litigation against election officials: 

• whose actions or inactions result in the disproportionate inability of certain groups to vote 

and have their votes counted; 

• who engage in list maintenance activities that result in the denial of equal access to the 

political process; 

• who fail to provide training to poll workers and the tools necessary for successful 

operation of polling places; 

• who fail to educate voters on registration and voting processes; 

• who implement practices that have adverse effects on voters with disabilities or language 

barriers; and 

• who prevent otherwise eligible voters from participating in elections either by virtue of 

criminal record or by failure to offer provisional voting.49

Federal officials are not always present when voting rights violations occur, thus citizens should 

be able to file complaints, and be assured that their complaints will be acted upon and that no one 

will retaliate against the originator. The Commission found that neither state nor county entities 

had established procedures for monitoring and documenting voting irregularities and complaints. 

It found that complaints are usually referred back to the official alleged to have committed the 

violation. The Commission recommended that Congress delegate to U.S. attorney offices in each 

 

47 USCCR, Voting Irregularities, p. 113. 

48 Ibid., pp. 99–100. 

49 USCCR, Election Reform, pp. 3–4, 43; USCCR, Voting Irregularities, pp. 102, 104, 106–07, 109, 113–115. 
 12

state responsibility for complaint resolution. Additionally, the Commission said that states 

should develop clear strategies for responding to complaints and publicizing voter rights.50 

 

Equipment 

The Commission examined the voting technology used nationally and found massive voting 

equipment problems throughout the United States. In Florida, different systems with varying 

error rates were used throughout the state. Poor communities and communities of color were 

more likely to use equipment with higher vote spoilage rates.51 African American voters cast 

approximately 54 percent of the spoiled ballots, despite composing only 11 percent of all 

voters.52 Improving voting technology has since been a focus of reform efforts, with many states 

searching for replacements for their old systems and the federal government grappling with 

minimum standards. 

The Commission did not endorse any specific voting equipment brand, but it did recommend that 

electronic, precinct-count tabulation systems be used.53 It also recommended that the Federal 

Election Commission (FEC) maintain the statutory authority to develop technology standards 

and guidelines. For example, equipment that notifies voters when ballots are invalid and provides 

the opportunity to make corrections should be mandatory. In addition, the Commission 

recommended that FEC develop standard requirements for technologies that facilitate 

accessibility for voters with disabilities and limited English proficiency.54

THE HELP AMERICA VOTE ACT OF 2002: A FEDERAL-STATE PARTNERSHIP 

The Help America Vote Act is a civil rights act for all Americans, seeking to improve 

voting access and fairness for all. Its technical provisions on voting equipment and 

election administration may be mundane compared to the groundbreaking efforts of civil 

rights legislation of the 1960s. The right to vote has little meaning, however, if that 

promise is lost to old voting machines that cannot read properly cast ballots or illtrained 

poll workers who incorrectly inform a citizen that he or she has not registered to vote.55

Given all the problems uncovered in Florida and nationally, and finding that regulation of the 

federal election process is within the scope of congressional authority, the Commission called 

upon Congress to establish guidelines and impose requirements on state election systems to 

 

50 USCCR, Election Reform, p. 44. 51 USCCR, Voting Irregularities, p. 115. 

52 Berry testimony, p. 3. 

53 USCCR, Voting Irregularities, p. 116. 54 USCCR, Election Reform, p. 52. 

55 Brian Kim, “Recent Development: Help America Vote Act,” Harvard Journal on Legislation, vol. 40 (Summer 

2003), p. 579. 
 13

ensure fairness and accessibility.56 The Commission urged Congress to act swiftly to set 

milestones and allocate sufficient funding for the development and delivery of federal election 

guidelines.57 As the following will illustrate, Congress did not act swiftly, but took two years to 

pass election reform legislation, and state implementation shows signs of being equally retarded. 

Nearly two years after the November 2000 elections, and after a lengthy and divisive debate, 

Congress passed the Help America Vote Act of 2002 (HAVA), and President Bush signed it into 

law on October 29, 2002.58 The legislation required compromise from both parties in Congress. 

Despite that some of its provisions concerned civil rights advocates, the bill eventually gained 

bipartisan support. 

HAVA is a historical measure, representing the first large-scale federal investment in state and 

local election administration in U.S. history. HAVA authorizes distribution of $3.86 billion in 

federal aid over three fiscal years ($2.16 billion in 2003, $1.05 billion in 2004, and $650 million 

in 2005) to states for improving elections. HAVA sets dates and standards for rendering voting 

equipment, registration lists, and general election administration fair, accurate, and representative 

of the needs of America’s populace. 

However, a year and a half since HAVA passed, many mandated milestones remain unmet. For 

example, HAVA required that, by 2004, states offer provisional ballots to voters, verify identities 

of first-time voters who register by mail, post voting information at polling places, and establish 

complaint procedures for cases in which voters experience problems at the polls.59 As this paper 

will demonstrate, most states have passed legislation necessary for those actions, but few have 

built the infrastructure, made purchases, or acted to implement all of the law’s requirements. 

Although states are responsible for implementing election reform and ensuring compliance with 

HAVA, the federal government has the responsibility to provide funding and guidance to the 

states. HAVA thus represents a federal-state effort, requiring the two to work in tandem. The 

following discussion will outline federal and state responsibilities, as well as the problems 

federal and state governments have experienced in implementing specific provisions. 

The Federal Role in Helping America Vote 

Funding 

Reform of the magnitude prescribed by HAVA requires significant resources. Thus, Congress 

determined the level of funding it would grant states to enact the law’s provisions. The amount 

that Congress eventually authorized would go to states, $3.86 billion over three years, was the 

 

56 For the purpose of this paper, the term “voting system” generally refers to the election process and may include 

voting technology, registration lists, voting procedures, and other aspects related to the administration of elections. 

57 USCCR, Election Reform, p. 41. 58 Help America Vote Act, Pub. L. No. 107-252, 116 Stat. 1666 codified at 42 U.S.C. §§ 15301–15545 (2002). 

59 Election Reform Information Project, Primary Education: Election Reform and the Presidential Race, January 

2004, <http://www.electionline.org> (hereafter cited as ERIP, Primary Education). 
 14

result of compromise. Of that amount, $650 million was promised upfront for improving state 

election systems. 

Title I of HAVA establishes that the General Services Administration (GSA) will administer two 

grant programs, outlined in Sections 101 and 102, with funding evenly split between them. 

Section 101 provides funding to states to improve general election administration, for examples: 

voter education, poll worker and election official training, improving voting technology, improving 

accessibility for limited English proficient (LEP) and disabled voters, and establishing state 

complaint centers. The law allows states to apply for grants and determine how to use the money 

they receive. Award amounts are based on a state’s voting-age population as a proportion of the 

total U.S. voting-age population, but are no less than $5 million.60 

Section 102 grants specifically fund punch card and lever machine replacement. New systems 

installed using Section 102 funding must meet the requirements outlined later in the legislation 

(Section 301). HAVA authorizes $4,000 per precinct for punch card and lever machine 

replacement. States that received Section 102 funds to purchase and install new equipment must 

do so by November 2004 or request an extension; however, the extension period may not exceed 

the first election after January 1, 2006. Any state not in compliance by the original or authorized 

extended deadline must return funds. HAVA does not require states to discontinue use of punch 

cards or levers, but those that choose to continue using such systems are ineligible for Section 

102 funds. 

In addition to the $650 million provided under Sections 101 and 102, HAVA authorizes $3 

billion for required election improvements.61 In addition to these “requirements payments,” Title 

II of HAVA sets aside funding for specific purposes: 

• HAVA provides $50 million for FY 2003, $25 million for 2004, and $25 million for 2005 

to ensure voting access for persons with disabilities. The Department of Health and 

Human Services (HHS) is responsible for making payments to eligible state and local 

governments to improve accessibility, establish outreach programs for persons with 

disabilities, and train election officials on how to best promote access and participation.62 

• Congress authorized $20 million in 2003 for technology research grants to improve 

quality, accuracy, reliability, and security of voting equipment and systems. State 

applications must include plans for accommodating LEP and disabled voters. States that 

receive grants must submit reports on grant expenditures and other related activities.63

• For 2003, $10 million was authorized for equipment testing pilot programs. Tests must 

respond to LEP and disabled voter needs.64

 

60 Voting-age population is determined by the U.S. Census. 

61 Help America Vote Act § 257(a), 42 U.S.C. § 15301 (2002). 62 Id. §§ 261–264(a). 

63 Id. §§ 271(a), (b)–273(a). 64 Id. §§ 281(a), (b)(1)–283(a). 
 15

• HAVA authorizes $10 million per year through 2006 for each state to ensure registration 

and voting access for persons with disabilities.65 Public and private nonprofit organizations 

can receive funding to train election officials and evaluate systems for accessibility. 

Congressional Appropriation 

 

Although HAVA authorizes significant funding for election reform, Congress has been slow to 

appropriate funds accordingly.66 Not until February 2003, four months after HAVA became law, 

did Congress finally pass appropriations legislation providing $1.5 billion for its implementation. 

This amount represents 30 percent less than the $2.16 billion promised for 2003, as the White 

House imposed a spending cap limiting appropriations.67 Title I money (for replacing equipment 

and improving election administration) was funded in full at $650 million. The remaining $850 

million was earmarked for compliance with Title III (technology standards, provisional ballots, 

registration systems, and voter identification). 

President Bush requested only $500 million for election reform in 2004, despite that HAVA 

authorized more than $1 billion. After political wrangling and vocal debate in Congress, $1.5 

billion was actually appropriated for 2004. However, the 2004 Omnibus Appropriations package 

was signed into law on January 26, 2004, after the deadline for meeting many of the law’s 

requirements had passed, and the money has not yet been fully distributed to states.68 For 2005, 

the President requested $65 million: $40 million for grants to states, $10 million for federal 

administration, and $15 million for accessibility grants to assist voters with disabilities.69 The 

2005 budget is still being negotiated in Congress. 

Disbursement to States 

One of the keys to reform is passing the money to the states to purchase equipment and set up 

infrastructure to respond to mandates. This process has, by all accounts, been slow. By mid-June 

2003, GSA had disbursed almost all of the $650 million in early money to the 55 jurisdictions 

 

65 Id. §§ 291(a)–292(a). 66 For the purpose of this discussion, the following definitions are used: 

Authorized funds: the amount of funding available to fulfill HAVA’s requirements as established in the legislation. 

This is a maximum amount to be allocated and is dependent on the annual appropriations process. 

Appropriated funds: the amount of funding Congress actually grants for a specific purpose as established by the 

annual omnibus appropriations resolution. 

Disbursed funds: the amount actually distributed to states to implement HAVA. 

67 Election Reform Information Project, “Election Reform Briefing: Ready for Reform?” electionline.org, March 

2003, p. 3 (hereafter cited as ERIP, “Ready for Reform?”) 68 See “Rep. Wexler Urges Florida to Use $85 Million in New Federal Election Aid for Ballot Printers,” States News 

Service, Jan. 27, 2004; Congressman Robert Wexler, “Florida to Get $133 Million in Federal Election Aid,” 

congressional press releases, Feb. 6, 2004. 69 Amy Keller, “$65M for Election Reform Called Inadequate,” Roll Call, Feb. 5, 2004. 
 16

covered by HAVA.70 Another $15 million was appropriated to reimburse some states that 

adopted new voting technology early. HHS paid out $13 million to states for improving voting 

systems for individuals with disabilities, and another $2 million to state disability protection and 

advocacy systems. An additional $830 million appropriated in 2003 for “requirements payments” 

has not been distributed.71 Thus far, approximately 18 percent of the total $3.86 billion 

authorized (for fiscal years 2003–2005) has been distributed to states. 

Table 2. Authorized, Appropriated, and Disbursed Funds 

 

HAVA Funding 2003:

Authorized funds $2.16 billion 

Appropriated funds $1.50 billion 

Disbursed funds $680 million 

HAVA Funding 2004: 

Authorized funds $1.05 billion 

Appropriated funds $1.50 billion 

Disbursed funds N/A 

 

HAVA Funding 2005: 

Authorized funds $650 million 

Appropriated funds N/A 

Disbursed funds N/A 

Without the money transferred to state coffers yet, it will be difficult if not impossible for states 

to have all systems in place by November. The Election Assistance Commission (EAC), 

discussed in greater detail below, was supposed to be established and acting independently 

within 120 days of HAVA’s passage (that is, by February 26, 2003). However, it was not until 

December 2003—nearly 10 months behind schedule—that its members were confirmed by 

Congress.72 EAC is responsible for reviewing and approving state grant requests. 

EAC has an operating budget of only $1.2 million for 2004.73 Publishing state plans in the 

Federal Register alone will consume $800,000 of that budget.74 Nonetheless, in a February 2004 

meeting with the National Association of Secretaries of State, the EAC chair indicated his intent 

to review state compliance plans by the end of February and publish them in the Federal Register 

shortly thereafter, so that funds could be distributed to states by mid-May.75 This includes states 

 

70 Election Reform Information Project, Election Reform 2004, What’s Changed, What Hasn’t, and Why, January 

2004, p. 22, <http://www.electionline.org> (hereafter cited as ERIP, Election Reform 2004). 

71 U.S. Department of Justice, “Help America Vote Act of 2002: Justice Department Implementation Activities as of 

December 2003,” news release, Dec. 31, 2003, <http://www.usdoj.gov/opa/pr/2003/December/03_crt_729.htm> 

(last accessed Mar. 11, 2004) (hereafter cited as DOJ, “HAVA Activities”); Jim Abrams, “Senate Confirms Election 

Panel Members,” Associated Press Online, Dec. 9, 2003, <http://www.nexis.com/research/search/submitViewTagged> 

(last accessed Mar. 4, 2004). 

72 The four members are DeForest Soaries, Jr. (chair), Paul S. DeGregorio, Gracia Hillman, and Ray Martinez. 

73 Dan Keating, “Election Panel Tells States Money Will Be Coming: $2.3 Billion to Be Disbursed for Voting Upgrades,” 

Washington Post, Feb. 17, 2004 (hereafter cited as Keating, “Election Panel Tells States Money Will Be Coming”). 

74 Amy Keller, “Problems Plague New Commission,” Roll Call, Jan. 26, 2004; “Budgeting for Another Florida,” 

New York Times, Feb. 8, 2004. 75 Keating, “Election Panel Tells States Money Will Be Coming.” 
 17

that requested waivers for registration databases and equipment replacement, which also had to 

submit plans and are still eligible to receive funds. 

The revised EAC timeline for distributing funds leaves states less than six months to prepare for 

the intractable deadline: Election Day. Moreover, while the funding is critical, states are also 

looking for federal guidance before purchasing equipment, setting up registration lists, and 

complying with other HAVA requirements. 

Guidance 

Once states are given the resources to initiate reforms, they should also receive guidance to 

ensure that they are in compliance with HAVA and that the election systems they select are the 

most appropriate. The federal government has an obligation to help states use funds productively. 

To do so, HAVA gave EAC authority to oversee and guide national election reform. 

EAC is set up such that two of its four members at any given time are affiliated with different 

political parties. Members are appointed by the President with the advice and consent of 

Congress. The majority leader of the Senate, the minority leader of the Senate, the speaker of the 

House, and the minority leader of the House each submit a candidate for consideration by the 

President for each vacancy affiliated with his or her political party. Commissioners will generally 

serve for four years, but to establish staggered terms, two of the initial members (not affiliated 

with the same political parties) were appointed to serve two-year terms. 

Under EAC are three assisting bodies: the EAC Standards Board, the EAC Board of Advisors, 

and the Technical Guidelines Development Committee. Their composition is as follows: 

• The EAC Standards Board: 110 members, composed of one state election official and one 

local election official from each of the 55 states/territories. The two representatives from 

each state cannot be of the same political affiliation. Nine of the members will serve as an 

executive board.76 

• The EAC Board of Advisors: 37 members appointed by government and private 

organizations (including the Commission), voter advocacy groups, and members of 

Congress.77 

• The Technical Guidelines Development Committee: 15 members, chaired by the director 

of the National Institute of Standards and Technology (NIST).78 

HAVA directs the two boards to review voluntary guidelines under consideration by EAC and to 

assist with the development of recommendations for procedural and technological election 

standards. The technical committee’s charge is to develop voluntary equipment guidelines for 

states, including computer and other voting technology security, fraud prevention, voter privacy, 

 

76 Help America Vote Act § 213(a), 42 U.S.C. § 15301 (2002). 

77 Id. § 214(a). 78 Id. § 221(c). 
 18

systems to accommodate persons with disabilities, and remote access/Internet voting. The 

committee’s first set of recommendations is due nine months after EAC members are appointed. 

EAC will vote on and adopt technology guidelines after consideration of comments from the two 

boards. EAC has not yet developed new guidelines for election equipment; existing Federal 

Election Commission guidelines will remain in effect until it does. 

EAC guidelines, once developed, will be voluntary for states and are not a prerequisite to 

receiving funds, although previously mentioned Section 102 restrictions apply. However, states 

must submit plans to EAC explaining how they will expend grants. In addition, six months after 

the end of the fiscal year, states must report how funds were actually spent.79 In this way, HAVA 

mandates federal oversight for federal expenditures. 

Among other duties, HAVA assigns EAC responsibility for testing and certifying voting 

equipment using accredited laboratories.80 States may voluntarily subject their systems to testing. 

Under the legislation, EAC also must study technology, ballot design, voter registration, and 

provisional voting and submit reports to Congress and the President.81 On a periodic basis, as 

determined by EAC, the agency will conduct studies with the goal of promoting voting and 

election administration methods that are most convenient and accessible for overseas voters, 

individuals with disabilities, and LEP voters; and that are nondiscriminatory and afford eligible 

voters an “equal opportunity to vote and have that vote counted.”82 

Title III directs EAC to adopt voluntary guidance for voting technology standards by January 1, 

2004, for provisional voting by October 1, 2003, and for voter registration lists by October 1, 

2003. HAVA establishes that the recommendations must be reviewed and updated at least once 

every four years. As the HAVA timeline below indicates, however, EAC appointments were 

delayed 10 months; thus, it has not met any of the milestones so far. Nor has EAC begun a 

comprehensive review of the areas in which states are dependent on guidance before they act, 

such as equipment and registration list technology; it has offered no commitment for when it will 

make guidelines available. EAC met for the first time as a formal body on March 23, 2004, but it 

is still without office space, designated staff, or basic administrative infrastructure.83 

Enforcement 

The federal government has the authority, indeed the responsibility, to enforce HAVA 

implementation at the state level and seek redress for violations. Title IV establishes the 

framework for addressing state failure to comply with the law’s requirements and existing voter 

rights laws. The attorney general of the United States may bring a civil action seeking 

declaratory or injunctive relief against any state not in compliance with the uniform and 

 

79 Id. § 258. 

80 Id. § 231(a)(1). 81 Id. § 241(a), (b). 82 Id. § 241(a)(3). 

83 Staff of FEC’s Office of Election Administration will be officially transferred to EAC and will occupy a new 

office in Washington, DC, beginning April 2, 2004. EAC is expected to have its own Web site sometime in April. 
 19

nondiscriminatory technology and administrative requirements.84 Even states that do not use 

HAVA funds must certify to the attorney general that they are meeting Title III requirements by 

submitting a compliance plan.85 Plans from nonparticipating states were due January 1, 2004. 

Enforcement of HAVA’s provisions poses major civil rights concerns. For instance, it is 

impossible to determine whether every poll worker in every precinct knows the conditions under 

which provisional ballots must be furnished and acts accordingly. There is evidence that even in 

states where provisional ballots have always been available, poll workers have not routinely 

provided them to voters.86 The Department of Justice is charged with monitoring state 

compliance with HAVA, but it is unclear whether Congress has given the agency the resources 

necessary to conduct widespread monitoring. The Commission also has statutorily granted 

monitoring responsibilities and should likewise be given the resources to monitor HAVA 

compliance, along with the Voting Rights Act, and other federal voting legislation it has 

traditionally monitored. 

The Status of Federal Implementation 

In general, the federal government has three main responsibilities under HAVA: funding, 

guidance, and enforcement. Delays in implementation, however, have prevented these 

responsibilities from being met, and in turn have stymied state progress. Table 3 presents a 

timeline of HAVA’s statutory requirements. It illustrates that, of the 22 target dates that have 

lapsed since the passage of HAVA, only five were met on time. The majority of the incomplete 

or tardy tasks rest with the federal government. Congress’ failure to appoint EAC members in a 

timely fashion has repercussively affected other deadlines, specifically the dissemination of 

guidance on provisional voting, voter registration databases, and voting technology standards. 

As the following discussion will indicate, absent these guidelines, states have been hesitant to 

move forward with reform. States have generally complied with the reporting requirements and 

the deadlines for requesting extensions. However, absent analyses of state reports, it is difficult 

to determine whether many HAVA-prescribed activities have actually occurred. Table 3 shows 

that there are five such requirements that states may or may not have successfully implemented, 

including, for example, the adoption of provisional voting procedures. 

 

84 Help America Vote Act § 401, 42 U.S.C. § 15301 (2002). 

85 Id. § 402(b). 86 ERIP, Primary Education. 
 20

Table 3. Help America Vote Act Timeline 

Days/Months 

After Enactment Date Activity Deadline Met 

45 days Dec. 13, 2002 Section 101: GSA establish grant program for states to 

improve election administration. No 

45 days Dec. 13, 2002 Section 102: GSA establish grant program for states to 

replace punch cards or lever voting machines. No 

 Jan. 1, 2003 Section 303(b): States must be ready to accept materials 

from voters registering by mail. ? 

90 days Jan. 27, 2003 Chief state election officials must submit name of individual 

selected to serve on EAC Standards Board to FEC. No 

120 days Feb. 26, 2003 Appointment of 4 EAC commissioners. No 

 Mar. 31, 2003 State NVRA reports for 2001–2001 due to FEC. Yes 

6 months Apr. 29, 2003 Deadline for states to submit certification to GSA for election 

administration grants (as outlined in Section 101). ? 

6 months Apr. 29, 2003 Equipment replacement (Section 102) payments. No 

 June 30, 2003 2001–2002 NVRA report submitted to Congress. Yes 

 Oct. 1, 2003 

Section 303: EAC adopts recommendations and voluntary 

guidance on provisions for computerized statewide voter 

registration list and mail registration requirements. 

No 

 Oct. 1, 2003 Section 302: EAC adopts recommendations and voluntary 

guidance on provisional voting requirements. No 

12 months Oct. 29, 2003 Section 243: EAC submits Human Factors Report to the 

President and Congress. No 

12 months Oct. 29, 2003 Section 246: EAC submits report on free absentee ballot 

postage to Congress. No 

 Jan. 1, 2004 Deadline for states to qualify for waiver of computerized 

statewide registration databases. Yes 

 Jan. 1, 2004 

Last day for states to apply for a waiver of the deadline for 

replacing punch card or lever machines using Section 102 

payments. 

Yes 

 Jan. 1, 2004 

States not participating in grant programs must certify to 

EAC that they have established administrative complaint 

procedures (Section 402) or submitted a compliance plan to 

the attorney general. 

Yes 

 Jan. 1, 2004 Effective date for provisional voting and voting information 

requirements. ? 

 Jan. 1, 2004 States must comply with requirements for statewide 

computerized voter registration lists, unless granted a waiver. ? 
 21

Days/Months 

After Enactment Date Activity Deadline 

Met 

 Jan. 1, 2004 EAC adopts voluntary guidance recommendations relating to 

voting technology standards requirements (Section 301). No 

 Jan. 1, 2004 

Effective date of provision prohibiting states from refusing to 

accept registration and absentee ballot applications because 

of early submission (Section 706). 

? 

 Jan. 31, 2004 EAC submits first annual report to Congress. No 

18 months Mar. 29, 2004 

EAC submits to the President and Congress a report and 

recommendations for facilitating military and overseas voting 

(Section 242). 

No 

20 months May 29, 2004 

EAC submits to Congress a report on the issues and 

challenges presented by incorporating Internet and 

communication technology into the election process (Section 

245). 

N/A 

 Nov. 2, 2004 

All punch card and leaver machines must be replaced in 

states accepting Section 102 payments unless a waiver was 

granted. 

N/A 

 Mar. 31, 2005 State NVRA reports for 2003–2004 due to EAC. N/A 

 June 1, 2005 EAC submits report to President and Congress on voters 

who register by mail (Section 244). N/A 

 June 1, 2005 

EAC reports to Congress on the feasibility of using social 

security number or other information to establish registration 

or other voter eligibility and ID requirements (Section 244). 

N/A 

 June 30, 2005 2003–2004 NVRA report submitted to Congress. N/A 

 Jan. 1, 2006 Each state required to comply with voting technology 

requirements in Section 301. N/A 

 Jan. 1, 2006 Deadline for states to implement statewide voter registration 

database if granted a waiver. N/A 

First federal 

election after 

Jan. 1, 2006 

All punch card and lever machines must be replaced in 

states accepting Section 102 payments that were granted a 

waiver. 

N/A 

 Jan. 1, 2007 Voting equipment purchased with Title II payments must 

meet disability access standards outlined in Section 301. N/A 

No = Statutory provision was not completed on time 

Yes = Deadline was met 

? = Unable to determine because information is not readily available. 

Source: U.S. Federal Election Commission, “Help America Vote Act Timeline,” <http://www.fecweb1.fec.gov/hava/timeline.htm> (last 

accessed Mar. 3, 2004); Congressional Research Service, memorandum from Kevin J. Coleman, analyst, Government and Finance Division, 

re: Help America Vote Act Timeline, Dec. 4, 2002.
 22

The State Role in Helping America Vote 

The federal government has always allowed states latitude to develop election procedures, 

provided they adhered to federal voting laws. HAVA preserves state autonomy to some extent, 

but also establishes minimum requirements for uniform and nondiscriminatory election systems. 

As such, states have been given new responsibilities and face new challenges to ensure that 

future elections are free from the irregularities of the last presidential election. 

Immediately after the 2000 elections, states initiated repair of failing voting infrastructure. In the 

following year, 27 states formed commissions or task forces, issued election status reports, or 

drafted legislative reform plans.87 And, according to the National Conference of State 

Legislatures, in 2003, 1,740 bills were introduced, 318 passed into law, and 341 carried over into 

2004.88 Many of these bills were attempts to achieve compliance with HAVA. As of the end of 

2003, 46 states introduced bills dealing specifically with HAVA requirements, and 38 states 

passed new related laws. Only four states produced no HAVA-related legislation at all in 2003 

(Michigan, Ohio, South Carolina, and Virginia).89

When HAVA became law, no state had a system in place that satisfied all three of its major 

requirements: provisional voting, statewide voter registration databases, and voter verification for 

first-time voters. According to one study, in March 2003, only four states and the District of 

Columbia believed they were in compliance with two of the three; 11 states reported meeting one 

of the requirements; and 35 states reported not meeting any HAVA mandates.90 A majority of 

states also used voting technology that did not meet minimum HAVA standards. In other words, 

states had a long way to go—and needed ample resources—before compliance could be achieved. 

Four HAVA requirements were scheduled to take effect on January 1, 2004, and should be in 

place for the November presidential election: provisional voting, voter information (instructions, 

rights, complaint procedures, etc.), identification requirements for new voters, and statewide 

registration lists. However, as the following discussion will illustrate, while states show signs of 

trying to achieve compliance, most are still in the planning stages. For example, by the 2003 

deadline, 41 covered jurisdictions had requested extensions until 2006 for the implementation of 

the computerized statewide voter registration lists.91 This raises the possibility that many voters 

will encounter the same obstacles as in 2000, such as being erroneously purged from registration 

lists, making provisional ballot use more critical. 

 

87 The Constitution Project, “Federal Election Reform: Action and Reaction Conference Proceedings,” <http://www. 

constitutionproject.org/eri/reportindex.html> (last accessed Mar. 4, 2004) (hereafter cited as the Constitution 

Project, “Federal Election Reform”). 

88 National Conference of State Legislatures, “The States Tackle Election Reform,” Dec. 16, 2003, <http://www. 

ncsl.org/programs/legman/elect/taskfc/03billsum.htm> (last accessed Mar. 12, 2004). 89 Ibid. 

90 ERIP, “Ready for Reform?” p. 2. 

91 ERIP, Election Reform 2004. Covered jurisdictions include all 50 states, the District of Columbia, American 

Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands. 
 23

States do not have to comply with voting technology requirements until 2006, although those 

accepting funds to replace punch card and lever systems were supposed to do so in time for the 

2004 elections. To date, 24 of the 30 states (80 percent) participating in the replacement program 

have requested extensions until 2006. 

Still, the Department of Justice, which has been monitoring state activities to ensure compliance 

with the provisions and timelines of HAVA, has found that all states are making “good faith 

efforts” to implement the law. At the end of 2003, every covered jurisdiction, except one, had 

drafted a state plan identifying steps it would take to implement HAVA and published the plan 

on the Internet.92

Although nearly every state has a plan, reform efforts vary widely from state to state. Some have 

made measurable changes; others are progressing more slowly, either because of the lengthy 

legislative process, lack of funding, or an absence of political leadership.93 HAVA’s 

requirements of states are complex and will exact significant effort to carry out. Requirements in 

Title III have the broadest implications for states and voters. Title III outlines minimum 

technology standards and requirements for election administration, including provisional ballots 

and voter identification. The law permits states to establish election technology and 

administration standards that are more strict as long as they comport with federal law. This 

section generated the most controversy in Congress and threatened to unravel federal reform 

efforts. 

 

Minimum Technology Standards 

Section 301 establishes minimum standards for voting technology and assumes that some states 

will seek state-of-the-art technology. Equipment used in federal elections must: 

• permit voters to verify their ballots before casting a vote (although not necessarily by 

paper receipt); 

• provide voters the opportunity to change or correct a ballot before it is cast; and 

• notify voters when a ballot is invalid, for example, if more than the designated number of 

candidates is selected. 

States may continue to use low-tech options such as paper, punch card, or central count voting 

technology. However, to meet the above requirements, states using those systems must: 

• establish a voter education program specific to the system used; 

• notify voters of the effect of casting multiple votes for an office or other errors that might 

invalidate a ballot; and 

• instruct voters on how to correct a ballot before it is cast, including the right to a 

replacement ballot if necessary. 

 

92 DOJ, “HAVA Activities.” 

93 ERIP, Election Reform 2004, p. 7. 
 24

Section 301 specifies that in all cases, voter privacy and ballot confidentiality must be preserved. 

In addition, all voting technology must: 

• produce records with audit capacity; 

• make a paper record available in the event a recount is necessary; 

• comply with Federal Election Commission (FEC) error rate standards in place at the time 

HAVA was enacted; 

• provide alternative language accessibility pursuant to Section 203 of the Voting Rights 

Act of 1965; and 

• be accessible to individuals with disabilities, including those with visual impairments, 

allowing them to cast a private ballot. 

 

Regardless of the equipment used, states must make available at least one direct recording 

electronic device or other equally equipped voting machine at each polling place to 

accommodate voters with disabilities. States must also adopt uniform and nondiscriminatory 

standards for what constitutes a vote. 

In short, states can use the same voting equipment that was in place prior to HAVA (and in the 

2000 elections) as long as they fulfill these requirements. Money granted for equipment 

replacement cannot be used to purchase or maintain punch card or lever technology. States 

accepting funding to replace punch cards and lever systems are supposed to have new systems in 

place before the 2004 elections, unless they request a waiver. All other system standards under 

this section must be in place by January 1, 2006, with the exception of the accessibility standards 

for individuals with disabilities, which must be in place by January 1, 2007. 

As noted, of the 30 states participating in the equipment buyout program, 24 applied for waivers 

to extend the deadline until January 1, 2006.94 Three jurisdictions (Maryland, Georgia, and the 

District of Columbia) upgraded machines after the 2000 elections and will seek reimbursement 

from federal funds.95 Others, including Florida and California, rushed to replace punch card 

systems after 2000, but it is unclear whether they will receive federal reimbursement. Nineteen 

states plan to implement uniform, statewide voting equipment by 2006.96 Other states, such as 

Alaska and Oklahoma, had voting technology compliant with HAVA’s provisions statewide 

before 2000.97 

At least some polling places in 42 states will have new voting machines for the November 2004 

elections.98 However, many voters will use the same equipment in November, including the 

punch card systems that created so much controversy in 2000. In all, 775 counties and towns 

have changed voting equipment since the 2000 elections; 324 of those have done so since the 

 

94 Ibid., p. 12. 

95 ERIP, “Ready for Reform?” p. 4. 

96 ERIP, Election Reform 2004, p. 12. 97 ERIP, “Ready for Reform?” p. 4. 

98 Dan Seligson, “Post-2000 Election Changes Are Still Incomplete,” electionline.org, February 2004 (hereafter 

cited as Seligson, “Post-2000 Election Changes”). 
 25

passage of HAVA, and 467 did so between 2000 and 2002.99 In total, this represents less than 25 

percent of all counties in the United States.100

The minimum requirements for technology leave room for states to adopt systems that may be 

more prone to error than others, at least until EAC’s technology committee develops standards, 

and even those will be recommendations, not requirements. HAVA does not decertify lever 

systems or punch cards, despite their questionable performance in the past. HAVA also gives 

states latitude to determine what will constitute a vote, rather than establishing definitions for 

each type of voting equipment. Because system standards are not required until 2006, there is the 

potential that the 2004 elections will not go any more smoothly than the 2000 elections. 

Provisional Voting 

Evidence suggests that consistent use of provisional ballots can reduce the number of votes lost 

to inaccurate registration lists by 50 percent.101 Section 302 of HAVA requires states to enact 

provisional voting procedures by January 1, 2004. It states that any individual not on a 

registration list must be allowed to cast a provisional ballot after signing a written affirmation of 

eligibility. The state must provide verification to each voter that his or her ballot was counted. 

States must establish a free access verification system, for example, a toll-free telephone number 

or Internet site. States must count all valid provisional ballots and provide an explanation to any 

person whose provisional vote is not counted. A ballot’s validity shall be determined by state 

law. In addition, HAVA requires states to post at each polling place information about the 

availability of provisional ballots.102

During the 2000 elections, 19 states offered some form of provisional voting, although they 

varied in scope and availability.103 Since then, as prescribed by HAVA, every state has had to 

create a process for providing provisional voting and a system to inform voters whether their 

provisional ballots were counted. Several states had to modify existing rules for provisional 

voting, and every state had to create a new notification system.104

As of December 2003, 40 states were compliant with this requirement, and two states had 

legislation pending. Another six states are exempt from this requirement either because they 

 

99 Election Data Services, Inc., “New Study Shows 50 Million Voters Will Use Electronic Voting Systems, 32 

Million Still with Punch Cards in 2004,” Feb. 12, 2004, p. 2 (hereafter cited as EDS, “New Study Shows”). 

100 According to the Census Bureau, there are 3,142 counties in the United States. It should be noted that in some 

New England jurisdictions, voting technology decisions are made at the township level, not the county level. 

101 Kim, “Help America Vote Act,” p. 592, citing California Institute of Technology/Massachusetts Institute of 

Technology Voting Technology Project, Voting: What Is, What Could Be, 2001, p. 30, <http://www.vote.caltech. 

edu/Reports/july01/July01_VTP_%20Voting_Report_Entire.pdf> (hereafter cited as Caltech/MIT, Voting). 

102 Help America Vote Act § 302(b), 42 U.S.C. § 15301 (2002). 

103 USCCR, Election Reform, p. 49. 104 ERIP, Election Reform 2004, p. 19. 
 26

allow Election Day registration or have no registration at all. Iowa, Kansas, and Mississippi have 

yet to pass state legislation for provisional voting.105

Although states have pressed forward on this requirement, there are still some issues that must be 

worked out before the next election. For example, for some financially insecure counties, the 

cost of special envelopes and staff time to produce and distribute provisional ballots is 

burdensome. In addition, voters in small rural jurisdictions fear that a provisional ballot, labeled 

with a voter’s name, invalidates the right to secrecy. The potential for voter privacy violations is 

of particular concern in counties where neighbors and family members sometimes run against 

each other.106

 

Statewide Voter Registration Lists 

Errors on registration lists and incorrect purging of voter names proved to be major sources of 

disenfranchisement in the 2000 elections. Research found that registration list problems were 

responsible for half of the 4 million to 6 million votes lost in that election.107 HAVA thus 

establishes requirements for voter registration list maintenance. Section 303 requires states to 

develop centralized, nondiscriminatory, computerized voter registration lists linked with other 

state agency databases, specifically motor vehicle authority data.108 In addition, the databases 

must allow local election officials immediate access to the lists and state assistance with 

expeditious data entry. The systems must assign each voter a unique identifying number, either a 

voter registration number, or one that corresponds to a driver’s license or social security number. 

 

States are also required to engage in regular list maintenance activities, such as removing names 

of deceased voters. They must provide adequate security measures and establish safeguards 

against removing eligible voters.109 According to Section 303, names can only be removed in 

accordance with the National Voter Registration Act of 1993 (NVRA), which allows states to 

take such actions when voters have neither responded to a notice nor voted in two consecutive 

general elections. States also may remove names of voters deemed ineligible by state law. 

NVRA requires that felony status be linked to computerized state agency records, although 

neither HAVA nor NVRA establishes safeguards to prevent erroneous classification of felon 

status (discussed in greater detail below). 

Unless states sought and received waivers, HAVA required voter registration databases to be 

functional by January 1, 2004. Since 41 states asked for extensions until January 1, 2006, most 

will not have statewide systems in place before the November elections.110 Only four states 

 

105 Ibid. 

106 H. Gregory Meyer, “Interim Ballots Address ’00 Flaw,” Chicago Tribune, Mar. 15, 2004, p. 1. 107 The Constitution Project, “Federal Election Reform.” 

108 Per the National Voter Registration Act of 1993, which remains in effect, states are also required to provide 

registration opportunities through public assistance offices and offices providing benefit services to persons with 

disabilities. Such databases must also be linked to the statewide registration list. 

109 Help America Vote Act § 303(a)(2), 42 U.S.C. § 15301 (2002). 

110 ERIP, Election Reform 2004.
 27

(Delaware, Kentucky, Louisiana, and South Carolina) claim to have had compliant systems in 

place for many years, and therefore do not foresee the need to make changes prior to future 

elections.111 

The registration database as described by HAVA poses potential problems for states. HAVA 

does not clearly define list matching for voter registration databases. HAVA notes that felon 

status must be coordinated with other agency records to ensure accuracy, but does not address 

the possibility that corrections records may not be updated or accurate. Presumably, individuals 

wrongly identified as felons would be allowed to cast provisional ballots, but this is yet 

unknown. Furthermore, some are concerned that a centralized database, which places the 

authority for maintenance in the hands of a few state officials, could be used to facilitate large 

purges of eligible voters.112 States will inevitably look to EAC for guidance on list matching and 

roll maintenance, but until it is a working organization, none will be available. 

The lack of guidance and the slow disbursement of federal funds have hampered the 

development of databases. California, for example, says it will either modify its existing database 

or install a new one “as soon as is reasonably possible.” It makes no provision for what the state 

will do in the meantime to ensure registration list accuracy, although presumably California is 

slightly ahead of other states because it already has a computerized list in place.113 Florida, on the 

other hand, has 67 county-level registration databases that are combined into the state’s Central 

Voter File quarterly. The counties are not connected to the central list. Following each election, a 

private company reviews the combined list to eliminate duplicate listings and ineligible voters. 

After the 2000 elections, Florida officials urged improvement of the system “as soon as 

possible,” but developed no contingency plan for the interim, and it is unclear what the state has 

done since then.114

The state of Ohio also has a decentralized database, but plans to contract with a vendor to 

centralize the system and enable both written and electronic means for voters to register. The 

state’s plan does not indicate when this will occur, nor does it propose a backup plan.115

Likewise, Virginia has a computerized database, but it is not in compliance with HAVA. Rather 

than modify its existing system, the state will develop an entirely new one.116 

 

Kentucky’s system is reportedly one of the best in the country because, although it is maintained 

at the state level, it allows county-level access. County officials can instantaneously update voter 

 

111 ERIP, “Ready for Reform?” p. 7. 

112 The Constitution Project, “Federal Election Reform.” 

113 Kevin Shelly, secretary of state, California, My Vote Counts: California’s Plan for Voting in the 21st Century, p. 

13, <http://www.myvotecounts.org> (last accessed Mar. 30, 2004) (hereafter cited as California, My Vote Counts). 114 The Governor’s Select Task Force on Election Procedures, Standards, and Technology, Revitalizing Democracy 

in Florida, Mar. 1, 2001, pp. 48–51 (hereafter cited as Florida, Revitalizing Democracy). 115 J. Kenneth Blackwell, secretary of state, Ohio, Changing the Election Landscape in the State of Ohio, May 13, 

2003, p. 35 (hereafter cited as Ohio, Changing the Election Landscape). 

116 Jean R. Jensen, secretary, State Board of Elections, Virginia, Virginia State Plan, draft for public comment, June 

2003, p. 9, <http://www.sbe.state.va.us/web_docs2/HAVA/HAVADRAFTPlanForPublicComment.htm> (last 

accessed Mar. 30, 2004) (hereafter cited as Virginia, State Plan). 
 28

records and receive written confirmation the next day. Kentucky’s Board of Election is preparing 

to provide Internet access to the database for official use at precincts on Election Day.117 

Voter Identification 

In an attempt to prevent voter fraud, HAVA establishes minimum requirements for voter 

identification. First-time voters registering by mail must present a valid photo ID or a current 

utility bill, bank statement, or paycheck bearing their name and address.118 HAVA requires the 

same for absentee ballots and mail-in votes. If a voter does not have an acceptable form of 

identification at the polls, he or she must be allowed to cast a provisional ballot until eligibility 

can be determined.119

The HAVA voter identification provisions were among the most controversial as the bill was 

being developed. Civil rights groups were concerned that minority and low-income populations 

would be unfairly penalized by the identification requirement or disparately required to prove 

their identity even when not required (i.e., they are not first-time voters). These concerns are 

justified given their common occurrence in 2000. Likewise, disabled voters are less likely to 

have driver’s licenses or to live alone and thus have utilities in their names. The same may be 

true of immigrant voters, who are more likely to share households. Advocates argued that 

identification is necessary to prevent voter fraud. Because HAVA prescribes only a minimum 

identification requirement, states have flexibility to adopt more stringent rules and can establish 

higher identification standards. 

During the 2000 elections, 11 states required all voters to present verification at the polls before 

voting. In 2003, six additional states (Alabama, Colorado, Montana, North Dakota, South 

Dakota, and Tennessee) passed universal voter identification rules requiring every voter to 

present identification before receiving a ballot, bringing the total to 17 states.120 Since the 

passage of HAVA, 25 states that did not previously require verification will ask for identification 

from first-time voters who registered by mail but did not include identification.121 To date, no 

states have expanded the available identification alternatives beyond what HAVA lists as 

acceptable (i.e., photo ID, utility bill, bank statement, or paycheck),122 although Ohio’s state plan 

indicates that it will do so.123 

Given the new identification requirements and the technicalities involved, it is imperative that 

states train poll workers to understand when ID is required. Evidently this did not happen in 

some jurisdictions prior to the 2004 primary elections. For example, in Cleveland, during the 

 

117 Florida, Revitalizing Democracy, pp. 50–51. 118 Help America Vote Act § 303(b)(2), 42 U.S.C. § 15301 (2002). 

119 Id. § 303(b)(2), (B)(i–ii). 120 Seligson, “Post-2000 Election Changes.” 

121 ERIP, Election Reform 2004, pp. 17–18. 

122 ERIP, Primary Education. 123 Ohio, Changing the Election Landscape, pp. 35–36. 
 29

March primary, poll workers required some Cuyahoga County voters to produce identification 

before being allowed to cast ballots. The four poll workers said they had been instructed during 

training to ask for identification. By 11:00 a.m., someone from the county Board of Elections 

had called the precinct to tell them to stop. Only 185 new registrants who had not provided 

driver’s licenses or social security numbers upon registration should have been asked to produce 

identification.124

Complaint Procedures 

As a condition of receiving funds and to provide an avenue of redress for voters who believe 

their rights have been violated, states must establish uniform and nondiscriminatory complaint 

procedures.125 HAVA does not specify who in the state is responsible for receiving and resolving 

complaints, but it does stipulate how complaints are to be processed: 

• complaints must be written and notarized; 

• complainants must be allowed to request a hearing; 

• states shall determine whether or not there was a violation and if a remedy is necessary; 

• states must resolve complaints within 90 days, or within 60 days thereafter using 

alternative dispute resolution; and 

• if a state dismisses a complaint, the results of the procedures must be published. 

What states have done to set up complaint procedures for individuals who believe their rights 

have been violated has not been widely studied to date. Some states, such as California, had 

complaint procedures in place before HAVA’s enactment. California administers a toll-free 

telephone number for filing complaints and has procedures for filing written complaints with the 

secretary of state. Complaint forms are translated in appropriate languages and made accessible 

to persons with disabilities.126 Ohio is developing its complaint process, which, according to the 

secretary of state, will be nonadversarial rather than highly evidentiary, and will include both 

alternative dispute resolution and formal hearings.127 Virginia has informal grievance procedures, 

but is working to adopt a formal complaint mechanism.128

HAVA complaint requirements yield some foreseeable problems. HAVA requires states to 

resolve complaints within 90 days. However, certifying an election before complaints are 

resolved, as many states will do, will not protect the rights of violated voters, particularly in the 

event of a pattern or practice violation that could sway election results. In addition, HAVA does 

not separate the complaint resolution function from the administration of elections; nor does it 

specify who is responsible for processing complaints. This separation was central to the 

 

124 Barb Galbincea and Connie Schultz, “Confusion Plagues Voters, Poll Workers,” Cleveland Plain Dealer, Mar. 3, 

2004, p. B1. 

125 Help America Vote Act § 402(a), 42 U.S.C. § 15301 (2002). 

126 California, My Vote Counts, p. 30. 

127 Ohio, Changing the Election Landscape, pp. 36–37. 128 Virginia, State Plan, p. 22. 
 30

Commission’s recommendations to ensure that the entity allegedly committing or condoning an 

unlawful practice is not also responsible for investigation and resolution. 

NATIONAL ELECTION REFORM INADEQUACIES AND POTENTIAL PITFALLS 

As the preceding description of HAVA illustrates, many of the Commission’s recommendations 

were incorporated into the legislation, but not all have been implemented to date. Congress 

satisfied the most urgent needs, as identified after the 2000 elections by codifying access, 

uniformity, and efficiency—at least for some aspects of elections. Significantly, HAVA provides 

federal funding for state reform, requires provisional ballots, creates uniform standards for voter 

identification, establishes minimum technology standards, requires complaint procedures and 

voter education, and mandates statewide, computerized voter registration lists. 

However, the law’s interpretation and implementation may possibly lead to procedures that 

either diverge from Commission recommendations or neglect them altogether. Some provisions 

of HAVA are problematic either because they are so vague or because they only establish 

minimum standards. Moreover, implementation delays are built into HAVA because it set 

contingency deadlines that allow states latitude to request extensions beyond 2004 for two core 

requirements: voting equipment replacement and registration databases. States’ need for 

additional time correlates with federal foot-dragging, but HAVA should have established fixed 

dates that guaranteed swift reform and attached penalties to untimely compliance. Table 4 lists 

the Commission’s major recommendations and describes how HAVA addresses them. 

Table 4. Comparison of Commission Recommendations for 

Election Reform and the Help America Vote Act

1. USCCR 

Minimum, mandatory, and voluntary national standards must be set for voting equipment, error rates, absentee 

and sample ballots, list maintenance, identity verification, ballot counting and tabulation, recounting (including 

what counts as a valid vote), voter education, felon disenfranchisement, and state and local responsibilities. 

Mandatory standards must be set for provisional ballots, ballot kick-back features on voting equipment, data 

collection and reporting, language assistance, and assurance of physical accessibility. 

HAVA 

Establishes minimum guidelines for technology—including ballot verification, kick-back features, audit capacity, 

and error rates (as developed by FEC)—voter identification, and voter information provided at the polls. 

Establishes mandatory requirements for statewide registration lists, provisional voting, and use of technologies 

to assist voters with disabilities. Charges EAC with studying various aspects of election administration, 

including technology, ballot design, voter registration, and accessibility. 

2. USCCR 

Sufficient funding must be provided for election reform. 

HAVA 

Whether funding is sufficient remains to be seen. HAVA authorizes $3.86 billion for election reform, but 

Congress failed to fully appropriate the amount designated for 2003. The President’s requests have been 

consistently below the authorization. 
 31

3. USCCR 

One central, high-ranking official should have sole responsibility and accountability for federal elections, and 

ensure compliance with national standards. This requirement should be a condition for receipt of federal funds. 

HAVA 

Does not specify who should administer elections, but suggests that each state should have a chief election 

official to coordinate reform activities and serve as the administrator of funds. 

4. USCCR 

Laws protecting voting rights must be enforced. DOJ should be given the necessary funds to monitor 

registration and elections and to pursue allegations of voting rights violations. 

HAVA 

Charges the attorney general with monitoring compliance with the technology and administrative requirements 

of HAVA and bringing civil actions seeking declaratory or injunctive relief. The attorney general must also certify 

that states not receiving HAVA funds meet the Title III requirements. No mention of whether specific funding for 

this purpose will be available to DOJ. 

5. USCCR 

States should establish and publicize procedures for complaint filing and resolution, including investigation 

strategies and timelines. The resolution of complaints should be the responsibility of an independent office, not 

affiliated with a state election office. DOJ’s Voting Rights Section should perform random audits of voting 

procedures to ensure fairness. 

HAVA 

Requires states to establish complaint procedures and publicize the complaint process. Complaints must be 

resolved within 90 days or, if not, within 60 days using alternative dispute resolution. If a state dismisses a 

complaint, the results and procedures must be published. The law does not separate complaint processing from 

election administration. 

6. USCCR 

Every state must be required to provide provisional ballots to voters who wish to contest their exclusion from 

voter registration lists or who have recently moved to a new jurisdiction. Verification of the provisional ballot 

should be performed immediately after an election so that the vote can be counted or the voter can appeal a 

decision not to count a vote. 

HAVA 

Requires the use of provisional ballots. Individuals not on a voter registration list must be allowed to cast a 

ballot after signing an affirmation of eligibility. Also requires states to set up a free access system to enable 

voters to verify whether their votes were counted. If a vote is not counted, it must be explained and justified by 

state law. 

7. USCCR 

States must develop improved registration technologies that enable real-time statewide registration of voters to 

eliminate the need for early registration deadlines and the possibility of data entry errors. 

HAVA 

Requires states to develop centralized, nondiscriminatory, computerized voter registration lists that are linked 

with other state agency databases. Also requires local access to the lists and regular maintenance activities. 

Name purging must be in compliance with NVRA. 

8. USCCR 

Election Day should be made a national holiday, perhaps Veterans Day, to enable more states to solve 

logistical problems relating to hiring poll workers and using accessible buildings. Uniform polling hours should 

be established statewide. 

HAVA 

Charges EAC with studying the feasibility of conducting elections on different days, establishing a national 

holiday, and designating specific dates as Election Day. 
 32

9. USCCR 

Congress should establish statutory authority for FEC to develop national voting technology standards and 

operational guidelines. Federal guidelines should be broad enough to accommodate states’ needs, but should 

require voting equipment to meet minimum standards, including accessibility for limited English proficient and 

disabled voters. 

HAVA 

Requires states to use technology that meets minimum standards, including ballot correction, notification of 

invalid ballots, ability to produce a paper record, audit capacity, and accessibility. Charges EAC with developing 

additional voluntary standards (for security, fraud prevention, privacy, Internet voting, etc.) and certifying 

systems using accredited laboratories. 

10. USCCR 

Federal guidelines must be set for voter identification to ensure that they are uniform and nondiscriminatory. 

Provisional ballots should be made available to individuals who do not meet the identification requirement. 

HAVA 

Establishes minimum requirements for voter identification. Requires voters registering by mail to present a 

current photo ID or utility bill, bank statement, or paycheck indicating name and address prior to casting a ballot 

for the first time. Absentee ballots must be accompanied by one of these items. Provisional ballots must be 

available to voters without identification. 

11. USCCR 

The federal government must develop uniform guidelines for disability access to improve enforcement of 

existing laws. All polling places must be made accessible immediately, and federal funds should be made 

available to improve accessibility, including TDD devices, wheelchair accessible voting booths, accessible 

ballots, and pilot programs for Internet voting. State efforts and success in this regard should be tracked. 

HAVA 

Requires states to ensure polling places are accessible to voters with disabilities and requires at least one 

direct recording electronic system at each polling place. Reiterates that states must use technologies that 

ensure compliance with the Americans with Disabilities Act and the Voting Accessibility for the Elderly and 

Handicapped Act. Also sets aside specific funding to ensure accessibility, establish outreach programs, and 

train election officials. Establishes technology research grants that must include plans for accommodating 

disabled voters and charges EAC with studying accessibility issues. 

12. USCCR 

The FEC should develop minimum standards for voter education materials and guidelines for the frequency of 

distribution. Standard materials should include information on how to file a complaint and applicable voting rights 

laws. Local outreach efforts should also include distribution of sample ballots and technology demonstrations. 

HAVA 

Requires posting of information about voting rights, provisional ballots, state and federal voting fraud laws, and 

complaint procedures, as well as voting instructions and a sample ballot, at polling places. Precincts using 

punch cards or paper voting technology must instruct voters on how to correct a ballot before it is cast. 

13. USCCR 

The federal government must set minimum requirements for the means used to accommodate the language 

needs of voters and establish proficiency standards for bilingual poll workers, registration officials, and 

translation services. Quality assurance procedures must be in place to ensure language-appropriate ballots, 

voting instructions, technical assistance materials, and complaint forms. States should be required to report to 

DOJ on the provisions available, utilization rates of bilingual materials, and outcomes of efforts. 

HAVA 

No mention of specific language assistance requirements other than to reiterate that states must use 

technologies that enable them to remain in compliance with Section 203 of the Voting Rights Act. Also charges 

EAC with studying LEP accessibility issues and establishes technology research grants that must include plans 

for accommodating LEP voters. 

14. USCCR 

The voting rights of ex-felons should be restored upon completion of their sentences and parole. Those on 

probation should be allowed to vote. 

HAVA 

No mention of disenfranchisement specifically, but requires states to match felon status for the purpose of voter 

registration with other agency records to ensure accuracy. 
 33

15. USCCR 

Election data must be collected uniformly across precincts in every state. Data should be collected on: precinct 

characteristics such as equipment and types of ballots used; communications systems; number of poll workers; 

poll worker training programs; polling place hours; ballot availability in non-English; accessibility features to 

assist voters with disabilities or limited English proficiency; and criteria used to purge names from registration 

lists. 

HAVA 

No mention of data collection for these areas, but directs EAC to study the collection of nationwide statistics on 

fraud. 

16. USCCR 

Congress should establish a mandatory waiting period (21 days) after an election before certification of results 

to include provisional, absentee, and overseas ballots and to allow for resolution of voting discrepancies and 

voter complaints. 

HAVA 

No mention. 

17. USCCR 

State election officials should work with the federal government to develop a checklist of functions to be 

completed before, during, and after an election. 

HAVA 

No mention. 

18. USCCR 

Voter registration cards should be provided to individuals being sworn in as U.S. citizens to help new 

Americans become eligible to vote more quickly. Immigration offices should provide registration assistance. 

HAVA 

No mention. 

The Commission recommendations that were not specifically addressed by HAVA can be 

implemented by federal and state officials through legislation and operating procedures. 

Following are a few issues the Commission raised in 2001 that deserve examination before the 

2004 elections, especially given the status of state reform. 

Data Collection 

HAVA makes no mention of data collection to facilitate the study of election administration 

nationwide. Although states must submit plans and report on election activities, there is no guarantee 

that the information will be presented in a uniform format that will facilitate national analysis and 

comparisons. Areas that would lend themselves to uniform study and reporting include equipment 

types, communication systems, poll worker training programs, ballot availability in non-English 

languages and Braille, and accessibility features for voters with disabilities. 

Planning Tools 

HAVA does not require EAC to develop a checklist, for use by states, of functions to be 

completed before, during, and after an election to ensure efficiency and compliance. Given the 

disparities in preparedness that existed between counties in the last election, there should be 

standards for election activities. A checklist, which includes assurances that the requirements of 

HAVA are in place, would serve as a useful planning tool. 
 34

Election Certification 

HAVA does not establish a mandatory waiting period before certification of an election. Election 

certification should be aligned with the mandated use of provisional ballots and the 

establishment of complaint processing procedures to ensure that all eligible votes are counted. 

Otherwise, these safeguards will be rendered useless. 

Voter Education and Poll Worker Training 

HAVA allows states to use Section 101 funds for poll worker training, and it calls on EAC to 

study methods of recruiting, training, and improving the performance of poll workers. It does 

not, however, require states to develop uniform training standards to ensure that poll workers 

across precincts are equally knowledgeable. Nor does it require EAC to develop a training 

module on HAVA’s requirements and voting rights. 

The recent primary elections demonstrated the need for better poll worker training. In Orange 

County, California, poorly trained poll workers gave 7,000 voters incorrect access codes to 

generate their ballots. The codes represented adjacent precincts and caused the wrong ballots to 

appear on voting screens. The computer presented many voters with ballots identical to those 

they would have properly received, but because of the wrong code, an unknown number cast 

votes in races for which they were ineligible.129 

Similarly, a voter in Florida reported that a poll worker gave him the wrong system activation 

card, which erroneously called up a town ballot. He did not realize what had happened before he 

cast his ballot, at which point he was informed that nothing could be done to correct the mistake. 

The same problem occurred at another precinct, but in that instance poll workers, after conferring 

for nearly an hour, finally settled on the solution to offer the voter a provisional ballot, although 

state law does not allow provisional voting under those circumstances. In Florida, a state 

canvassing board determines which provisional ballots will count.130

In the recent primary elections in Georgia, voters who had filled out the wrong voter certification 

form or been given wrong access cards by poll workers voted on machines that called up the 

wrong ballot. The access card only allowed them to vote on a state flag referendum and not for a 

presidential primary candidate. One voter said that poll workers allowed him to return in the 

afternoon and vote again after having casting a wrong ballot in the morning. Commenting to 

media on that incident, county election officials reiterated that allowing anyone to vote twice is 

against the law.131

 

129 Jean O. Pasco, “Ballot Error Effect Cited: Orange County Registrar Says Incorrect Electronic Ballots May Have 

Altered a Race’s Outcome, But Says Results Will Be Certified Today,” Los Angeles Times, Mar. 30, 2004 (hereafter 

cited as Pasco, “Ballot Error Effect”). 

130 Anthony Man and Kathy Bushouse, “99,000 Voters, But Few Glitches; Some Problems Still Hamper Election 

Day,” Fort Lauderdale Sun-Sentinel, Mar. 10, 2004, p. 1A (hereafter cited as Man and Bushouse, “99,000 Voters”). 

131 Carlos Campos, “Election 2004: Super Tuesday: Scattered Glitches Mar Balloting; Human Errors Cited as 

Cause,” Atlanta Journal-Constitution, Mar. 3, 2004, p. 12A. 
 35

In addition to improved poll worker training, scenarios such as these could be prevented through 

voter education. If voters know their rights, they will be less likely to accept misinformation. 

However, HAVA’s voter education requirements are limited to polling place postings and 

instructions, not pre-election outreach and education, although states can use HAVA funds for 

that purpose. Some groups advocate expanding the minimum voter information requirements to 

include a Voter’s Bill of Rights.132 At a minimum, states should be required to disseminate 

public service announcements and publish sample ballots prior to Election Day. 

Reinstatement of Ex-Felon Voting Rights 

HAVA establishes no guidelines for the reinstatement of voting rights for ex-felons, and instead 

leaves it to the states to determine who can vote and how voting rights are restored. The result is 

a patchwork of disenfranchisement laws and a complex labyrinth of reinstatement procedures. 

This is a gross legislative oversight that deserves examination given the magnitude of the impact 

of disenfranchisement laws. 

An estimated 4.7 million Americans are unable to vote because of felony convictions.133

Nationally, blacks are five times more likely than whites to be unable to vote due to a criminal 

record. Similar disparities apply to Latinos.134 Experts contend that disparities in law 

enforcement and sentencing, including but not limited to, discretionary arrests and prosecutions 

biased against nonwhites, are to blame for the disparities in felony status and, ultimately, 

disenfranchisement.135 According to the Bureau of Justice Statistics, in 2002, the composition of 

male inmates in state and federal prisons was 45 percent black, 34 percent white, and 18 percent 

Hispanic.136 Relative to their representation in the U.S. population, blacks are incarcerated at 

eight times the rate, and Hispanics at 3.5 times the rate, of whites.137 These rates are at least in 

part attributable to disparities in U.S. drug sentencing policy. For example, stricter guidelines 

applicable to crack cocaine compared with its powdered form, have resulted in blacks being 

convicted more often and serving longer sentences than whites.138 The prison population swelled 

 

132 Leadership Conference on Civil Rights, “Recommendations on Implementation of the ‘Help America Vote Act’,” 

Dec. 19, 2002, <http://www.civilrights.org>. 

133 The Sentencing Project, “Felony Disenfranchisement Rates for Women,” March 2004. 

134 Disenfranchisement rates for Hispanics are more difficult to ascertain because of citizenship status and voter 

eligibility. Comparisons with the voting-age population are not accurate. Instead, analysis should consider 

citizenship status. See MALDEF, Diminished Voting Power in the Latino Community: The Impact of Felony 

Disenfranchisement Laws in Ten Targeted States, December 2003. 135 Dēmos, “Democracy Denied: The Racial History and Impact of Disenfranchisement Laws in the United States,” 

April 2003, p. 1 (hereafter cited as Dēmos, “Democracy Denied”). See also National Research Council, Committee 

on Law and Justice, “The Overrepresentation of Minorities in the Criminal Justice System,” p. 2. 

136 U.S. Department of Justice, Bureau of Justice Statistics, “Prisoners in 2002,” July 2003, p. 9. Figures include 

only those inmates sentenced to more than a year (hereafter cited as BJS, “Prisoners in 2002”). 137 Center for Juvenile and Criminal Justice, “America’s One-Million Nonviolent Prisoners,” March 1999, 

<http://www.cjcj.org/pubs/one_million/onemillion.html>. 

138 See Michael Coyle, “Race and Class in Crack Cocaine Sentencing,” the Sentencing Project, n.d., <http://www. 

sentencingproject.org/pdfs/5077.pdf> (last accessed Apr. 1, 2004). Hispanics are more likely to be convicted of 
 36

in the 1980s and 1990s fueled by a drive to enforce drug sentencing laws; between 1986 and 

1991 alone the number of African Americans imprisoned for drug offenses increased 465 

percent, a rate that far exceeds the increase in the number of imprisoned violent offenders.139

Today, the overwhelming majority (85 percent) of offenders subject to heightened crack cocaine 

penalties are black.140 Moreover, black prisoners are more likely (25.5 percent) than white 

prisoners (13.5 percent) to have been convicted of a nonviolent drug offense. The same is true 

for Hispanics (22.9 percent).141 Most state felon disenfranchisement laws do not distinguish 

between violent and nonviolent offenders, thus loss of the right to vote is the same for drug 

offenses, even relatively minor ones, as for violent offenses. 

The cumulative effect of sentencing disparities, high drug incarceration rates, and state 

disenfranchisement laws is that minorities, even those who have completed their sentences, are 

disenfranchised at a higher rate than whites. Of those disenfranchised, 1.4 million are African 

American men—a figure that represents 13 percent of the black adult male population, and is 

seven times the national average.142 If the current trend in incarceration continues, three in 10 of 

the next generation of black men can expect to be disenfranchised in their lifetime.143 

As of January 2004, every state except for two (Maine and Vermont) prohibits prisoners from voting. 

Twenty-nine states prohibit individuals with probation, and 33 prohibit individuals with parole status, 

from voting. Seven states prohibit all ex-felons, regardless of having paid their debt, from voting, 

and an additional seven states restrict terms under which ex-felons can vote (see table 5). 

Some states restore felons’ right to vote once they have served their sentences, but most states place 

restrictions on the reinstatement of voting rights. Eight states require a pardon or order from the 

governor; two states require action from the pardon or parole board.144 The state of Alabama requires 

some ex-felons to submit DNA samples as a condition of regaining voting rights.145 Obtaining a full 

pardon or other such measure often requires navigating a complex bureaucratic process, and many 

states do not educate convicted felons about reinstatement policies and procedures. 

 

 powder cocaine offenses than crack. However, Hispanics are more likely than whites to be convicted for both crack 

and powder cocaine. Ibid., p. 10. 

139 The Sentencing Project, Intended and Unintended Consequences: State Racial Disparities in Imprisonment, 

140 U.S. Sentencing Commission, “Report to the Congress: Cocaine and Federal Sentencing Policy,” May 2002, 

<http://www.ussc.gov/r_congress/02crack/2002crackrpt.htm>. 

141 BJS, “Prisoners in 2002,” p. 10. These figures represent only sentenced prisoners under state jurisdiction and 

those with sentences of more than a year. 

142 The Sentencing Project, “Felony Disenfranchisement Laws in the United States,” fact sheet, January 2004. See also

the Sentencing Project and Human Rights Watch, Losing the Vote: The Impact of Felony Disenfranchisement Laws in 

the United States, October 1998 (hereafter cited as the Sentencing Project/Human Rights Watch, Losing the Vote). 

143 The Sentencing Project/Human Rights Watch, Losing the Vote; Dēmos, “Democracy Denied,” p. 3. 

144 The Sentencing Project/Human Rights Watch, Losing the Vote, p. 5. 145 Dēmos, “Democracy Denied,” p. 3. 
 37

Table 5. Categories of Felons Disenfranchised Under State Law 

 Ex-Felons 

 Prison Probation Parole All Conditional 

Alabama X X X X 

Alaska X X X 

Arizona X X X X (2nd felony) 

Arkansas X X X 

California X X 

Colorado X X 

Connecticut X X 

Delaware X X X X (5 years) 

District of Columbia X 

Florida X X X X 

Georgia X X X 

Hawaii X 

Idaho X 

Illinois X 

Indiana X 

Iowa X X X X 

Kansas X X X 

Kentucky X X X X 

Louisiana X 

Maine 

Maryland X X X X (2nd felony, 

3 years) 

Massachusetts X 

Michigan X 

Minnesota X X X 

Mississippi X X X X 

Missouri X X X 

Montana X 

Nebraska X X X X 

Nevada X X X X (except 1st time 

nonviolent offenders) 

New Hampshire X 

New Jersey X X X 

New Mexico X X X 

New York X X 

North Carolina X X X 

North Dakota X 

Ohio X 

Oklahoma X X X 

Oregon X 

Pennsylvania X 

Rhode Island X X X 

South Carolina X X X 

South Dakota X 

Tennessee X X X X (pre-1986) 

Texas X X X 

Utah X 

Vermont 

Virginia X X X X 

Washington X X X X (pre-1984) 

West Virginia X X X 

Wisconsin X X X 

Wyoming X X X X (5 years) 

 

U.S. total 49 29 33 7 7 

Source: The Sentencing Project, “Categories of Felons Disenfranchised Under State Laws,” updated January 2004. 
 38

During the 2000 elections, not only did state disenfranchisement laws have a disproportionate 

effect on minorities, but widespread errors on registration lists, caused by a lack of procedures for 

removing a name from the rolls, stood in the way of the right to vote for many eligible citizens. 

States have an obligation to ensure that their felon lists are accurate and that felons eligible for 

reinstatement are removed from ineligible lists. The fact that most states will not have their 

centralized voter registration systems up and running before the upcoming elections makes it 

highly unlikely that this will be the case. Therefore, ex-felons attempting to vote should be 

provided provisional ballots until eligibility can be established. This will be a civil rights issue 

closely monitored. 

Preventive Measures 

With the exceptions presented here, HAVA generally addresses the problems the Commission 

and others identified after the last election. However, the status of states’ election readiness, as 

described in the preceding discussion, furthers the possibility that the same voters who were 

disenfranchised in 2000 will be disenfranchised again in 2004. Federal efforts to standardize 

elections are important and necessary, but effective implementation will require leadership and 

vigilance at the state level.146 So far, without the money to fully implement HAVA requirements, 

states are at varying stages of implementation, and many systems will look no different in 2004 

than they did in 2000. 

Funding delays may have set state implementation of HAVA requirements off course, however, 

states could undertake myriad tasks that would enhance their readiness for the November 

elections even without HAVA funds. The Commission offers the following 12 points, embodied 

in its previous findings, recommendations, and reports, that states could implement irrespective 

of federal grants: 

1. Get organized. States should begin by creating a checklist of what needs to be done over 

the next seven months at the state and local levels to prepare for elections. This was a 

Commission recommendation in 2001, and it holds necessary today. 

2. Train poll workers. State and local election officials should make sure that all poll 

workers understand HAVA’s provisional ballot and identification requirements, 

complaint procedures, equipment operation, voter rights, and how to ensure accessibility, 

and privacy, for voters with disabilities and limited English proficiency. 

3. Strengthen supervisory staff. There should be at least one supervisor at every polling 

place on Election Day to resolve any problems that might arise. Supervisors should 

receive adequate training and have direct access to state officials at all times during 

polling hours. 

4. Check registration lists. States that already have computerized registration databases 

should immediately begin checking for accuracy, comparing them with other state 

 

146 The Constitution Project, “Federal Election Reform.” 
 39

databases, and sending out letters to voters whose eligibility is questionable. All of these 

steps should be performed with care prior to any roll purging. 

5. Test equipment. Whether voting equipment is old or new, states should begin testing and 

trouble shooting equipment that will be used in the 2004 elections. States should refrain 

from making impulse equipment purchases, even if EAC distributes money in the next 

few months, unless they are proven systems that are easily installed and operated. 

6. Develop ballots early. States should begin developing ballots early so that they can be 

tested for usability, and samples can be widely distributed to voters in advance. 

7. Perform a trial run. States should perform election trial runs in selected precincts that 

have had difficulties in the past. The mock election should test everything from setting up 

a polling place to registration lists to equipment. 

8. Develop voter education materials. States should develop educational materials specific 

to their voting systems. States with similar systems should share applicable materials to 

prevent duplication of efforts and resources. 

9. Develop multiple language materials. States know, based on the 2000 Census, whether 

they are required to provide voting materials in languages other than English. They should 

begin developing such materials now so that they can be tested for usability and accuracy. 

10. Examine polling places. States should dispatch examiners to every polling place to assess 

accessibility and recommend changes where necessary. If polling places cannot be easily 

made accessible, they should be changed. Voters requiring assistance should be allowed to 

cast a ballot at an accessible site. However, voters should be given ample notice if a polling 

place changes, and inaccessible polling places should be publicized well in advance so that 

voters needing assistance can determine where to go or vote absentee. 

11. Review felon lists. States should begin checking felon lists for accuracy. Voter lists 

should be matched with corrections data. Prior to purging any name, that individual 

should be contacted to confirm felon status. States should then engage in outreach to exfelons eligible to vote to assist them with the reinstatement process. 

12. Conduct registration drives. States should work well ahead of registration deadlines to 

ensure that all eligible voters are registered. Registration drives should also be used as a 

venue for voter education, to inform voters of new procedures and their rights. 

States may show creativity when developing systems to achieve compliance with HAVA. The 

state of Ohio, for example, has proposed the installation of “practice” voting devices at polling 

places and via the Internet, which simulate the actual voting machines used.147 This type of handson voter education will improve voter confidence and reduce voter error, and can also serve as a 

testing device for poll workers. Although the federal government will ultimately monitor state 

success, it is incumbent on state officials to routinely check themselves. Again, Ohio has been a 

model in this area by proposing ongoing performance measurement from the local level up to the 

 

147 Ohio, Changing the Election Landscape, p. 29. 
 40

state.148 In doing so, state officials recognize the importance of local participation in the reform 

process and vigilance. 

There are likewise tasks EAC should engage in over the next seven months to assist states. 

Although the EAC chair has indicated that his priority at this point is to distribute federal funds 

to states, the commission should also provide guidance where necessary. EAC should begin by 

identifying priority issues that can feasibly be addressed in the next seven months. For example, 

at this point it appears impossible that EAC could test and recommend equipment in time, 

especially since the technology committee has not yet formed. Instead, EAC should work on 

developing HAVA-specific voter education materials. 

EAC should assess potential problem areas based on a thorough review of state plans and actions 

and work with DOJ to promote compliance. DOJ has been reviewing state plans and monitoring 

activities. It should now develop a strategy, or refine past strategies, for monitoring elections. 

Every precinct that experienced problems in 2000, or the 2002 midterm elections, should be 

monitored. For this, DOJ will have to tap into external resources and train national and local 

organizations to assist. DOJ and EAC should work together to ensure that the needs unique to 

specific regions, whether rural or densely populated, are met. 

EAC should draw on the expertise and resources of FEC to ensure that at least the known 

glitches are prevented. Perhaps EAC should use some of its operational funds to hire contract 

workers who can assist states with readiness tests, training, and registration. Certain states may 

require more aid than others if voters in those states are to have confidence casting their ballot in 

November 2004. Of course, the many questions that have been raised about the vulnerabilities of 

various voting technologies (discussed below) that could lead to voter disenfranchisement mean 

that additional measures, such as adequately training poll workers in the use of new technology, 

should begin now.149 The government can accomplish this by immediately providing state 

election officials sufficient funds to implement HAVA and moving swiftly, but clearly toward 

adopting fair, secure, and accessible voting system standards. 

RECORDING THE NATION’S INTENT: EQUIPMENT 

The word “ballot” derives from the Italian word, ballota, little colored ball. In ancient Athens, 

officials gave each eligible voter a tiny clay ball; a vote was cast by dropping the ball into their 

candidate’s clay pot.150 Such systems had existed in earlier forms, employing small pebbles and 

stones instead of clay balls. Although paper ballots, on which voters record their choices by 

marking a printed form, date back to 139 B.C., the method did not become popular until it was 

adopted in Australia in 1856. New York was the first American state to adopt the paper ballot in 

 

148 Ibid., p. 39. 

149 Leadership Conference on Civil Rights, “Statement of Principles on Electronic Voting,” Feb. 17, 2004, p. 1 

(hereafter cited as LCCR, “Statement”). 

150 “History of Voting Machines,” in Beyond the Textbook, Glencoe, a McGraw-Hill Company, <http://www. 

glencoe.com/sec/socialstudies/btt/election_day/history.shtml> (last accessed Mar. 30, 2004). 
 41

statewide elections in 1889.151 As of 2000, 1.3 percent of U.S. registered voters still used paper 

ballots. Paper is a primary method in some rural areas, and is used widely for absentee and 

provisional balloting. 

Mechanical lever machines debuted in 1892 in Lockport, New York. Lever balloting assigns a 

candidate’s name to small handles that when turned record each vote and track them 

cumulatively. Upon exit, another lever opens a curtain and returns the handles to their original 

positions. By 1930, every major American city used lever machines, and by 1960, more than half 

of the country did so. Punch cards were first used in the late 1890s, originally to tabulate data for 

the Baltimore Health Board. The U.S. Census later adopted the technology. Fulton and DeKalb 

Counties in Georgia were first in America to use punch cards in an election, and did so for the 

1964 primary elections. The method requires voters to use a stylus to punch holes through heavy 

paper or card; positions of each opening are associated with voter decisions. The segment of 

removed paper is referred to as a chad. The success of such systems depends on myriad variables, 

notably machine maintenance, strength and dexterity of the user, and quality of the preprinted 

paper or card ballot. Either the voter or a poll worker feeds the card into a computer to record the 

voter’s intent. However, depending on any given variable, the chad may not separate cleanly from 

the card, in which case the computer cannot definitively interpret the voter’s intent.152

Mark-Sense or optical scan technology, widely used in educational testing, requires voters to fill 

a designated area with a marker. Computers recognize and track marks as votes. More recently, 

direct recording electronic, or DRE, systems have come on the scene. Some consider these an 

electronic version of old lever machines in that choices are associated with buttons or graphics 

on a computer screen. The voter either presses buttons or touches the screen to make his or her 

choices. The machine stores the choices via a memory cartridge, diskette, or smart card for later 

aggregation with results from other machines. 

National interest in voting technology surged after the 2000 presidential election demonstrated 

inadequacies, especially in punch card systems. Stories about voting equipment dominated the 

news, and America began to understand their many limitations. Nationally, between 4 million 

and 6 million votes for president are estimated to have been lost in 2000, 1.5 million directly 

attributable to voting equipment. Moreover, an estimated 3.5 million Senate and gubernatorial 

votes were lost during election cycles for these offices leading to the 2000 elections, also because 

of equipment problems.153 

Effects of Ballot Design and Engineering on Election Outcomes 

Voting equipment, irrespective of type, must satisfy sometimes competing criteria. A voter’s 

ballot must be (1) private, (2) tamper-resistant, (3) fortified against human error propensities, and 

(4) comprehensible to and usable by the entire voting population. Universal access must be 

 

151 Mary Bellis, “The History of Voting Machines,” <http://inventors.about.com/library/weekly/aa111300b.htm> 

(last accessed Mar. 30, 2004) (hereafter cited as Bellis, “History”). 

152 Bellis, “History.” 

153 Caltech/MIT, Voting, pp. 8–9, 21. 
 42

considered from the ballot design stage and taken into account during engineering. Weaknesses 

in any criteria can affect election results.154

The problems in Florida were most often blamed on the vulnerabilities of punch card voting 

equipment;155 a design flaw often left intact the chads that equipment was supposed to detach. 

Undetached, the section prevented the card reader from detecting a vote on the ballot. 

Approximately 28 percent of registered voters used punch card machines in 2000, more than any 

other type.156 In all, five types of voting equipment were used throughout the country at that 

time: hand-counted paper ballot; punch card, also using paper ballot; optical scan; mechanical 

lever machine; and electronic.157 

In 2000, the percentage of registered voters using each type of equipment was as follows: 

• 1.3 percent hand-counted paper ballot; 

• 27.9 percent punch card; 

• 29.5 percent optical scan; 

• 16.9 percent mechanical lever machine; and 

• 12.6 percent electronic.158

In the 1992 and 1996 presidential election cycles, more registered voters used hand-counted 

paper ballots, punch card, and lever machine equipment than in 2000. Conversely, more voters 

used optical scan and electronic systems in 2000 than in 1992 or 1996. For example, in 1992 

39.8 percent of voters used punch card equipment, 3.9 percent used electronic, and 12.6 percent 

used optical scan systems (see figure 1). 

The move toward optical scan and electronic systems held for the 2002 midterm elections, but 

the number of voters being moved from punch card equipment (34.3 percent in 1998, 27.9 

percent in 2000, and 20.9 percent in 2002) may decelerate by the November 2004 elections. Still, 

the proportion of voters using electronic equipment increased from 12.6 percent in 2000 to 22.5 

percent in 2002. 

 

154 Tadayoshi Kohno, Adam Stubblefield, Aviel D. Rubin, and Dan S. Wallach, “Analysis of an Electronic Voting 

System,” Johns Hopkins University Information Security Institute, technical report TR-2003-19, July 23, 2003, p. 3 

(hereafter cited as Johns Hopkins Study). 

155 See Paul S. Herrnson, Richard G. Niemi, and Scott Richman, “Characteristics of Optical Scan and DRE Voting 

Equipment: What Features Should be Tested?” n.d., p. 1 (hereafter cited as Herrnson et al., “Characteristics”). 156 U.S. Commission on Civil Rights, “Voting Rights Procedures Nationwide: An Overview of the November 2000 

Elections,” briefing paper, draft, Mar. 23, 2001, appendix A, pp. A-1–A-4 (hereafter cited as USCCR, “Voting 

Rights”). See Federal Election Commission, Office of Election Administration, “Types of Voting Systems Used in 

the United States,” citing statistics from Election Data Services, Inc. (hereafter cited as FEC, “Types of Voting 

Systems”). 

157 USCCR, “Voting Rights”; FEC, “Types of Voting Systems.” See also USCCR, Election Reform; and USCCR, 

Voting Irregularities, for related discussions. 

158 Election Data Services, Inc., “Type of Voting Equipment by County,” 1999 (data from May); EDS, “New Study 

Shows,” p. 7 (data from Nov. 7, 2000, Nov. 5, 2002, and Feb. 9, 2004), p. 7; FEC, “Types of Voting Systems.” 
 43

Figure 1. Percent of Registered Voters Using Each Type of Voting Equipment 

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

1988 1992 1994 1996 1998 2000 2002 2004

Punch card Lever Optical Scan Electronic (DRE) Hand-counted ballots Mixed

*2004 registered voter counts are from official 2002 general elections registered voter counts. Equipment usage rates for 2004 are projected. 

Source: Federal Election Commission, Office of Election Administration, “Types of Voting Systems Used in the United States,” citing statistics 

from Election Data Services, Inc.; Election Data Services, Inc., “Type of Voting Equipment by County,” 1999 (data from May); Election Data 

Services, Inc., “New Study Shows 50 Million Voters Will Use Electronic Voting Systems, 32 Million Still with Punch Cards in 2004,” Feb. 12, 

2004 (data from Nov. 7, 2000, Nov. 5, 2002, and Feb. 9, 2004), pp. 1, 5–7. 

Equipment Forecast for November 2004 

After the 2000 elections, most Americans equated “older” with error prone. Jurisdictions, 

encouraged by promises for funding under HAVA, began to replace lever and punch card 

equipment with electronic systems.159 Election Data Services, an organization that tracts the 

administration of elections, projects that the proportion of voters using electronic equipment will 

reach 28.9 percent in 2004. However, in the 2004 general election 12.8 percent of registered 

voters will still use lever machines, and 0.6 percent may use hand-counted paper ballots.160 The 

latter translates to more than 1 million voters nationwide who will employ the earliest voting 

method used in America.161 Moreover, roughly 22.2 million may cast votes on lever machines.162 

 

159 See National Conference of State Legislatures, “Voting in America: Final Report of the NCSL Elections Reform 

Task Force,” 2001, <http://www.ncsl.org/programs/press/2001/electref0801.htm#_Toc522012609> (last accessed 

Mar. 10, 2004); “Voting Machines Firms Smile,” cnnmoney, Nov. 16, 2000, <http://money.cnn.com/2000/11/16/ 

companies/voting/> (last accessed Mar. 10, 2004).

160 EDS, “New Study Shows.” 

161 Matt Courtney, “Paper Ballots Firmly Entrenched in Rural America,” In Focus This Week . . . , electionline.org,

June 20, 2002, <http://www.electionline.org/article.jsp?id=electionline_Weekly_for_6-20&p=1> (last accessed Mar. 

9, 2004); Federal Election Commission, “Paper Ballots,” <http://www.fec.gov/pages/paper.htm> (last accessed Mar. 

9, 2004) (hereafter cited as FEC, “Paper Ballots”); Caltech/MIT, Voting, p. 18; EDS, “New Study Shows.” 

162 Federal Election Commission, “Mechanical Lever Machines,” <http://www.fec.gov/pages/lever.htm> (last 

accessed Mar. 9, 2004); FEC, “Paper Ballots”; EDS, “New Study Shows.” 
 44

County Equipment Forecast

In 2000, more counties used optical scan voting equipment than any other,163 and fewer counties 

used electronic voting systems, including direct recording electronic machines (DRE), than any 

other one system.164 By 2002, the number of counties using DRE technology increased 7.7 

percent (see table 6). As counties began to phase out lever machines and hand-counted ballots 

between 1980 and 1998, punch card, optical scan, and electronic systems grew in prominence 

and were used in 20 percent, 39 percent, and 8 percent of counties, respectively, by 1998. The 

number of counties using either optical scan or DRE technology will likely continue to increase 

in 2004.165 Despite these modernization trends, 28 percent of counties will still use punch card, 

lever machine, or hand-counted ballots in 2004. 

Table 6. Percent of Counties Using Each Type of Voting Equipment* 

Year Punch card Lever Optical 

scan 

Electronic 

(DRE) 

Hand-counted 

ballots Mixed 

1980 19.1% 36.4% 00.8% 00.2% 40.4% 3.0% 

1998 20.2% 15.3% 38.8% 08.2% 13.1% 4.5% 

2000 16.9% 13.9% 41.1% 09.9% 11.9% 4.8% 

2002 14.0% 09.3% 43.7% 17.6% 09.8% 5.0% 

2004 09.7% 08.7% 45.5% 21.5% 09.6% 4.9% 

*2004 registered voter counts are from official 2002 general elections registered voter counts. 

Due to rounding, percents may not equal 100. 

Source: Election Data Services, Inc., “New Study Shows 50 Million Voters Will Use Electronic Voting Systems, 32 

Million Still with Punch Cards in 2004,” Feb. 12, 2004 (data from Nov. 7, 2000, Nov. 5, 2002, and Feb. 9, 2004), pp. 1, 

5–7; California Institute of Technology and Massachusetts Institute of Technology, Voting: What Is, What Could Be, 

July, 2001, p. 88; Eric A. Fischer, “Voting Technologies in the United States: Overview and Issues for Congress,” Mar. 

21, 2001, <http://www.ncseonline.org/NLE/CRSreports/Risk/rsk-55.cfm?&CFID=12938384&CFTOKEN= 45795333> 

(last accessed Mar. 11, 2004).

State Equipment Forecast 

According to a nationwide survey, in the 2004 elections more than 50 million voters will use 

electronic voting equipment, 55 million will use optical scan systems, and 32 million will use 

punch cards.166 States that used punch cards in 2000, but will no longer include Arizona, Florida, 

Georgia, Minnesota, Montana, Nevada, New Jersey, North Dakota, Oregon, South Dakota, and 

Wisconsin. Among the states in which a large number of jurisdictions have replaced punch card 

systems are California, Illinois, and Ohio (see table 7). Punch card technology has generally been 

 

163 No effort has been made to distinguish voting technology use trends in counties from other election jurisdictions, 

including election districts, parishes, and independent cities. In fact, because the organizations that collect the data 

used by the Commission for this analysis represent it at the county level, it would not be possible to differentiate 

these trends. 

164 The number of counties that combined various systems was fewer than those employing electronic voting 

equipment alone. 

165 Eric A. Fischer, “Voting Technologies in the United States: Overview and Issues for Congress,” Mar. 21, 2001, 

<http://www.ncseonline.org/NLE/CRSreports/Risk/rsk-55.cfm?&CFID=12938384&CFTOKEN=45795333> (last 

accessed Mar. 11, 2004); Caltech/MIT, Voting, p. 8; EDS, “New Study Shows.” 166 EDS, “New Study Shows.” 
 45

replaced by electronic or optical scan technology throughout these jurisdictions.167 The states 

with the largest number of counties planning to use punch cards are Illinois, Missouri, Ohio, 

Tennessee, and Utah.168 Overall, precincts in 22 states will continue to use punch cards in the 

2004 primaries and general election.169 

Table 7. State Voting Equipment in November 2004 

States no longer using 

punch card systems 

States with the largest number 

of jurisdictions replacing 

punch card systems 

States with the largest number of 

jurisdictions replacing 

mechanical lever machines 

Arizona State Jurisdictions State Jurisdictions 

Florida California 17 Georgia 75 

Georgia Colorado 13 Indiana 12 

Minnesota Georgia 18 Massachusetts 23 

Montana* Illinois 38 Tennessee 32 

Nevada Indiana 13 Virginia 12 

New Jersey Ohio 50 

North Dakota 

Oregon 

South Dakota 

Wisconsin 

*As of the date Election Data Services presented its analysis (Feb. 12, 2004), Mineral County, Montana, had not selected new voting 

equipment. 

Source: Election Data Services, Inc., “New Study Shows 50 Million Voters Will Use Electronic Voting Systems, 32 Million Still with 

Punch Cards in 2004,” Feb. 12, 2004 (data from Nov. 7, 2000, Nov. 5, 2002, and Feb. 9, 2004), pp. 1–2, 5–7. 

Several states have also replaced mechanical lever machines with new voting technology. The 

states replacing the largest number of these systems include Georgia, Massachusetts, and 

Virginia (see table 7). Mechanical lever machines will still be used widely in Virginia, as well as 

in Connecticut, Louisiana, and New York in 2004.170 In New York, mechanical lever machines 

may still be used in 2006 because state officials have been unable to reach consensus in 

numerous areas, such as whether to use one voting technology system or several throughout the 

state.171 

System Overload: Electronic Equipment Limitations 

Some states have deferred decisions to replace punch card and lever machines because of 

uncertainty about federal funding and guidelines. Additionally, replacing equipment is the most 

expensive reform project for states. Nearly half of states expect machine expenditures to 

 

167 Ibid., pp. 1–2. As of the date Election Data Services presented its analysis (Feb. 12, 2004), Mineral County, 

Montana, had not selected new voting equipment. 

168 EDS, “New Study Shows,” p. 2. 

169 ERIP, Election Reform 2004, p. 15. 170 EDS, “New Study Shows,” p. 2. 

171 Eric Lipton, “Replacement Near, Old Vote Machines Are New York Issue,” New York Times, Oct. 20, 2003, 

<http://www.nytimes.com/2003/10/20/nyregion/20VOTE.html?ex=1382068800&en=d611aec7b26515a4&ei=5007

&partner=USERLAND> (last accessed Mar. 23, 2004) (hereafter cited as Lipton, “Replacement Near”). 
 46

consume more than 60 percent of their federal funds.172 In the meantime, independent studies are 

warning that without appropriate safeguards and guidelines, some electronic systems can be 

rendered insecure and vulnerable to break-ins from hackers. 

We identify several problems including unauthorized privilege escalation, incorrect use 

of cryptography, vulnerabilities to network threats, and poor software development 

processes. We show that voters, without any insider privileges, can cast unlimited votes 

without being detected by any mechanisms within the voting terminal software. 

Furthermore, we show that even the most serious of our outsider attacks could have been 

discovered and executed without access to the source code. In the face of such attacks, 

the usual worries about insider threats are not the only concerns; outsiders can do the 

damage. That said, we demonstrate that the insider threat is also quite considerable, 

showing that not only can an insider, such as a pollworker, modify the votes, but that 

insiders can also violate voter privacy and match votes with the voters who cast them. We 

conclude that [the Diebold] system is unsuitable for use in a general election. Any 

paperless electronic voting system might suffer similar flaws, despite any “certification” 

it could have otherwise received.173

Another study concludes that purchasers of DRE systems need to guard against (1) software that 

is closed and proprietary, thus only the company that designed the system can access its 

operating programs; others likely will not know until too late, if at all, whether improper coding 

or integrity problems exist; (2) software that undergoes insufficient scrutiny during qualification 

and certification; (3) increased vulnerability to various forms of computer programmer attacks; 

and (4) a lack of voter-verified audit trails, paper or otherwise.174

A main problem with electronic voting technology is its overreliance on the “correctness, 

robustness, and security” of the programs that instruct it to take action. Should software contain 

coding flaws, such systems are exploitable by malicious insiders or unscrupulous other actors. 

Such actors could include election campaign workers, state officials, equipment manufacturers, 

and operating system engineers. Any party that introduces flaws into the system could take 

advantage of those flaws to illegally cast or eliminate votes.175 Several studies have concluded 

that DRE systems are vulnerable to manipulation by individuals with relatively basic 

technological knowledge.176 A person wishing to influence an election could erase or multiply 

 

172 Election Reform Information Project, “Roads to Reform: Planning for the Help America Vote Act,” September 

2003, p. 3, <http://www.electionline.org>. 

173 Johns Hopkins Study, Abstract. 

174 David Jefferson et al., “A Security Analysis of the Secure Electronic Registration and Voting Experiment 

(SERVE),” Jan. 21, 2004, p. 2 (hereafter cited as Jefferson et al., “A Security Analysis”). 

175 Johns Hopkins Study, p. 3. 

176 See Eric A. Fischer, “Election Reform and Electronic Voting Systems (DREs): Analysis and Security Issues,” 

Nov. 4, 2003 (hereafter cited as Fischer, “Election Reform and Electronic”) pp. CRS-10–CRS-16; Tadayoshi Kohno et 

al., “Analysis of an Electronic Voting System,” Feb. 27, 2004 (hereafter cited as Kohno et al., “Analysis”); Tadayoshi 

Kohno et al., “Analysis of an Electronic Voting System,” response to Diebold’s technical analysis, Aug. 1, 2003; 

Fairfax County Republican Committee, “Operation Ballot Integrity,” 2004; Herrnson et al., “Characteristics.” 
 47

votes for any particular candidate.177 In either instance, votes could be nullified and voters 

disenfranchised. Although security concerns are paramount as states consider whether to use 

DRE technology, a second important and related fear is the inability of these systems to offer 

proof of a vote.178 

Vote Verification and Audit Capability 

HAVA requires states that receive federal funding to adopt systems that offer a voter verification 

of ballots and audit capacity. Such a system might require that local precincts, even those that 

use DRE technology, provide voters a printed copy of their completed ballot before leaving the 

booth (although many only provide on-screen voter verification). After verifying the ballot’s 

accuracy, voters would be given a chance to make any changes before placing it into a secure, 

vault-like, limited access container. Vaults would be collected, stored, and retained for a specific 

period following an election to make possible independent, hand-counted audits, if necessary. 

For example, in the March 2004 primary elections, Florida workers ended up counting ballots by 

hand again after improper coding on DRE technology gave Representative Richard Gephardt a 

decisive win in one county despite that he had dropped out of the race two months earlier. 

Officials discovered that the coding was improperly printed on the ballots, and the optical scan 

perceived votes intended for Senator John Kerry as intended for Representative Gephardt.179

In Broward County, Florida, one candidate lost a special election in January for a state House 

seat by 12 votes. Touch screen machines produced 137 blank ballots even though the seat was 

the only race. The ballots could not be checked because the technology did not offer paper 

verification.180 In West Palm Beach, the DRE presented a review screen, but not a physical 

document to a voter, which showed that he had touched the wrong name. Though he corrected 

the problem on the review screen, a paper document could have verified that the correction had 

been made and saved in a vault in the event the machine’s count came into question. Another 

voter expressed frustration at trying to have the screen respond to his touch, indicating that the 

equipment required three tries before he could cast his vote.181 Paper verification would raise 

voters’ confidence that what they indicated to the machine indeed registered. 

Equipment manufacturers argue that DRE voting machines can offer printouts from their 

memory cards or diskettes if needed after an election. Many advocates of such machines contend 

that the language of the voter-verified paper audit trail provision under HAVA does not actually 

require contemporaneous inspection of paper ballots at the time that ballots are cast. However, 

 

177 Realistically, the number of votes is limited to a number that will not readily be detected. For example, casting 

500 votes for a candidate at a particular polling location where only 1,000 registered voters cast their ballot will be 

easily detected. 

178 Kohno et al., “Analysis,” p. 21. 

179 Bill Kaczor, “Election Problems Stir Bad 2000 Memories,” Associated Press, Mar. 11, 2004. 180 Doug Abrahms, “Accuracy in Voting Machines Remains Issue in Election Year,” Gannett News Service, Jan. 16, 

2004. 

181 Man and Bushouse, “99,000 Voters,” p. 1A. 
 48

technology that relies on a machine system printout after the election may be insecure because 

the voter is not present to confirm his or her intent. Audits would be useless if they did not reflect 

the choices expressed by the voter, or could not accurately sum the cumulative outcome. DRE 

systems produce “digital ballots,” rendering error or fraud detection more difficult.182 Like the 

old mechanical lever machines, a voter casting a ballot on a DRE system “takes it on faith” that 

the vote was recorded correctly.183

Alternatively, security models such a the voter-verified audit trail allow for electronic 

voting systems that produce a paper trail that can be seen and verified by a voter. In such 

a system, the correctness burden on the voting terminal’s code is significantly less as 

voters can see and verify a physical object that describes their vote. Even if, for whatever 

reason, the machines cannot name the winner of an election, then the paper ballots can be 

recounted, either mechanically or manually to gain progressively more accurate election 

results.184

While states are required to use equipment that meets the audit capacity and voter verification 

criteria in all federal elections, the federal government has not issued guidelines for acceptable 

methods. Central (cumulative) paper audit capacity is necessary, but voters needn’t be provided a 

paper receipt or ballot. DRE devices may provide only on-screen verification. Moreover, states 

are not required to comply until 2006. The latitude for compliance and the timeframe in which 

states are expected to act leave the real prospect that many voters will likely cast unverifiable 

ballots in the November 2004 elections. 

Another problem with voting technology that does not offer physical documentation is that it 

may leave too much room to accommodate escape from accountability. In the 2000 elections, 

most Americans could not determine whether problems were more the fault of flawed 

equipment, missteps on the part of poll workers and election officials, or a lack of voter 

education. Election officials in recent primaries have blamed encoder problems on improperly 

trained poll workers.185 DRE technology could make corrupt actions easier, more covert, difficult 

to detect or trace, and more sweeping in impact on individual voters. 

Many experts point to a conspiracy among slot machine workers who rigged the devices so that 

odds shifted in response to a particular sequence of coins. From 1992 until 1996, the fraud went 

undetected.186 In the same manner, DRE voting machines that employ smart card technology are 

vulnerable to any worker or voter entering the precinct with a rigged card that would allow him 

or her to cast or erase multiple votes without detection.187 Systems are only as secure as the 

people who design, administer, and use them. 

 

182 Elise Ackerman, “Campaign Launched to Ban Digital Ballots,” San Jose Mercury News, Mar. 12, 2004 (hereafter 

cited as Ackerman, “Campaign Launched”). 

183 Fischer, “Election Reform and Electronic,” p. CRS-5. 

184 Johns Hopkins Study, p. 21. 

185 Rachel Konrad, “Electronic Voting Runs Into Some Glitches,” Associated Press Online, Mar. 3, 2004. 186 John Schwartz, “Electronic Vote Faces Big Test of its Security,” New York Times, Feb. 28, 2004, p. A1(hereafter 

cited as Schwartz, “Electronic Vote”).

187 Johns Hopkins Study, p. 4. 
 49

For example, though he later retracted the statement, and most observers accepted his 

explanation as an unfortunate word choice, equipment manufacturer Walden O’Dell expressed in 

a fundraising letter a commitment to “helping Ohio deliver its electoral votes to the president 

next year.”188 Statements such as this can erode the public’s confidence that the government will 

protect its rights. Contractors that state governments hire and standards that the federal 

government certifies should be vetted to ensure that they cannot plant and take advantage of 

known flaws that could manipulate the system. 

The model where individual vendors write proprietary code to run our elections appears 

to be unreliable, and if we do not change the process of designing our voting systems, we 

will have no confidence that our election results will reflect the will of the electorate.189

Electronic technology also assumes that county and precinct workers and volunteers have 

computer expertise necessary to resolve technical problems, but most do not. In the March 2004 

primary elections, a computer battery problem in San Diego County, California, delayed and 

frustrated voters, some of whom left without casting votes or were forced to other polling 

locations. Problems occurred at 10–15 percent of the county’s precincts.190 The American Civil 

Liberties Union called for a probe after receiving reports that voters had been disenfranchised.191 

In the 1970s, few states had guidelines for testing or evaluating voting equipment, and local 

officials took salespeople at their word that the systems worked, or depended on referrals from 

other jurisdictions. These informal means brought about chilling stories about equipment that 

failed to deliver accurate counts. The situation led the General Accounting Office’s Office of 

Federal Elections (precursor to FEC) to sign an interagency agreement with the National Bureau 

of Standards for operational guidelines that would ensure the accuracy and security of computerbased vote-tallying processes. Effective Use of Computing Technology in Vote-Tallying, released 

in 1975, concluded that a basic cause for computer-related election problems was the lack of 

technical skills at the state and local levels for developing or implementing standards for voting 

hardware and software evaluation.192

Computer glitches, which crashed some machines in Maryland, were resolved with the help of a 

team of computer experts hired to troubleshoot problems statewide. Poll workers shut off two of 

the machines in Charles County, one when a backup battery would not hold a charge, and the 

second when its printer failed. In St. Mary’s County, two of the 284 machines malfunctioned, 

and election officials took them out of service. 

 

188 Schwartz, “Electronic Vote, p. A10. 

189 Johns Hopkins Study. 

190 Rachel Konrad, “Poll Workers Grapple with Electronic Voting Glitches,” Mar. 3, 2004, <http://sfgate.com/cgibin/article.cgi?file=/news/archive/2004/03/03/state0339EST0046.DTL> (last accessed Mar. 4, 2004). 

191 American Civil Liberties Union, “ACLU Calls for Probe into Election Problems,” signonsandiego.com, Mar. 3, 

2004 (hereafter cited as ACLU, “ACLU Calls for Probes”). 

192 Bellis, “History.” 
 50

In Anne Arundel County, Maryland, one precinct experienced problems because computer 

experts delivered the wrong decoder to poll workers for operating the machines. Poll workers 

gave out paper ballots while computer experts resolved the problem.193

Transmitting election returns online further erodes system integrity. An hour after polls closed in 

March, election officials in Howard County, Maryland, realized that their main server failed to 

download data being sent to it from modems across the county.194 However, Maryland election 

officials state that only unofficial results, not used as the basis for official election results, were 

transmitted via modem because official polling place results are loaded onto the memory card of 

each machine.195 In San Antonio, tabulation computers had to be reprogrammed midway through 

the vote count after it was discovered the computers had not been properly programmed with 

updated data to count mail-in paper ballots.196 Worldwide, computer viruses have proven the 

capacity of lone individuals to intercept and alter information transmitted through electronic 

networks. 

Electronic systems and HAVA were supposed to restore voter confidence, and the law calls for 

states to upgrade registration databases and voting equipment by 2006. As this paper has 

demonstrated, the original hope of the law for system upgrades by this year has been all but 

abandoned. 

Networked State Registration Rolls

State and federal officials also have encouraged use of technology to link local systems into 

statewide databases and thus facilitate verifying eligible voters whose polling places may have 

changed, and to prevent the occurrence of a voter being registered in multiple jurisdictions. 

However, use of unique identifiers, such as social security number, to help discern between 

similar names, in the hands of more workers and volunteers magnifies potential for piracy, 

system abuse, and identity theft.197 Thus, as it develops criteria for contractors and equipment, 

the federal government should not assume that off-the-shelf technology will promote integrity 

and support voting rights enforcement. It may instead do well to involve itself at design and 

engineering stages to bring about that outcome. 

In 2000, the Commission also found that prior to the elections, officials in Florida had removed 

thousands of names from voting registration rolls on grounds that they were convicted felons. In 

fact, only a fraction of those removed actually had felony convictions; most were Floridians who 

had similar names. After the election, state officials ordered the names replaced on the rolls, but 

 

193 Raymond McCaffrey and Cameron W. Barr, “Debut of New Technology Gets Mostly High Mark,” Washington 

Post, Mar. 3, 2004, p. B4. 

194 Ibid. 

195 Linda H. Lamone, administrator, Maryland State Board of Elections, letter to the U.S. Commission on Civil 

Rights, Apr. 29, 2004. 

196 Tom Bower, “Texas Primary; Bexar Computer Glitch Delays Counting of Votes; Tabulation Was Held Up About 

90 Minutes While Voting System Was Re-Programmed,” San Antonio Express-News, Mar. 10, 2004, p. 12A. 197 Johns Hopkins Study, pp. 12–14. 
 51

affected Floridians had already been barred from voting.198 Therefore, as registration list 

technology is developed, it should be designed to account for similar names and other data 

anomalies that might trigger incorrect purging. Use of unique numeric identifiers will safeguard 

against removal for name duplication or data entry errors. 

Technology Assisting Voters with Disabilities 

HAVA codifies requirements for polling place and equipment accessibility for voters with 

disabilities. All systems purchased using Title II funds must meet disability access standards by 

January 1, 2007. By then, every polling place must have one electronic voting machine 

accessible to visually, physically, and hearing-impaired voters.199 HAVA also charges EAC with 

studying accessibility issues and provides money to states to make necessary alterations to 

equipment or facilities. However, requirements for access were in place long before HAVA, as 

mandated by the Americans with Disabilities Act and the Voting Accessibility for the Elderly 

and Handicapped Act. Months before HAVA passed, FEC developed guidelines to assist states 

with meeting access requirements. 

FEC established system standards for disabled individuals for all voting technology with specific 

standards directed at electronic voting equipment. It said that voting machines must be accessible 

to individuals who use modes of transportation, such as wheelchairs. Electronic voting 

equipment must also have audio capabilities, permit visual elements to be adjusted, and require a 

force less than 5 lbs. to operate.200 Nonetheless, states in large measure have not complied with 

existing disability rights laws or FEC guidelines. For example, New Hampshire officials already 

know that the state will not have voting equipment accessible to disabled voters in all precincts 

by November 2004. Florida anticipates that it may not either.201 Anticipating problems, disability 

rights groups filed suit against San Francisco and three other California counties for failing to 

provide touch screen voting equipment for disabled individuals during the March 2004 

Democratic primaries.202 

Language Capability 

HAVA also contains language accessibility requirements for individuals with limited English 

proficiency (as per Section 203 of the Voting Rights Act of 1965 (VRA)),203 but EAC has not yet 

established specific technology standards in this area. Consequently, states are uncertain how to 

proceed, and many jurisdictions are hesitant to invest in voting technology that may not meet the 

 

198 USCCR, Voting Irregularities, pp. 109–10. 199 Help America Vote Act, 42 U.S.C. § 15301. 

200 Federal Election Commission, “Voting System Standards,” <http://www.fec.gov/pages/vssfinal/vss.html> (last 

accessed Mar. 5, 2004). 

201 David Damron, “Millions of Voters Face Mess at Polls,” Orlando Sentinel, Jan. 4, 2004, p. A1. 202 Harriet Chiang, “Disabled Seek Upgrade in Voting,” SFGate.com, Mar. 9, 2004, <http://www.sfgate.com/cgibin/article.cgi?file=/chronicle/archive/2004/03/09/BAGIP5H2K21.DTL>. 

203 Help America Vote Act § 301(a)(4), 42 U.S.C. § 15301 (2002). 
 52

government’s standards.204 A few states, including Arizona, Colorado, and Maine, may provide 

language assistance beyond what is required by VRA. The District of Columbia, Oregon, 

Virginia, and Wisconsin plan to ensure that new voting technology provides language assistance 

beyond VRA. The vast majority of states, however, do not yet have specific plans and are 

awaiting issuance of government standards.205 

Initiatives to Improve Security, Audit Capacity, and Access 

Many experts examining DRE systems believe that voter-verified audit trails (providing voters a 

receipt listing their selections) would resolve many of these problems and improve voter 

confidence.206 Legislators may do well to focus attention on ensuring system integrity from the 

design stage and also bolstering voter protections through required audit capabilities. 

Some legislators have taken steps to ensure vote proof is provided. Among the efforts, 

Representative Robert Wexler sought a court injunction requiring that equipment in Florida 

provide voters a printed verification document showing that they voted.207 Mr. Wexler’s lawsuit 

has been granted an expedited trial schedule. According to Mr. Wexler, this gives Floridians 

hope that they will have a voting system that works by November 2004.208 Representative Rush 

Holt introduced a bill (the Voter Confidence and Increased Accessibility Act of 2003)209 in the 

House in May 2003 that: 

• requires all voting technology to produce a voter-verified paper record for use in manual 

audits and recounts; 

• bans the use of undisclosed software and wireless communications devices in voting 

technology; 

• requires all voting technology to meet these requirements in time for the November 2004 

general election; and 

• requires that electronic voting equipment be provided for persons with disabilities by 

January 1, 2006 (a year earlier than required by HAVA).210 

 

204 Brennan Center for Justice at NYU School of Law, Leadership Conference for Civil Rights, and People for the 

American Way, “HAVA Implementation in the 50 States: A Summary of State Implementation Plans” (hereafter 

cited as Brennan Center, “HAVA Implementation in the 50 States”), pp. 17–18; Tom Joyce, “York County PA, 

Officials Hesitant to Invest in Unproven Voting Technology,” York Daily Record, Mar. 22, 2004 (hereafter cited as 

Joyce, “York County”). 

205 Brennan Center, “HAVA Implementation in the 50 States,” pp. 17–18. See Joyce, “York County.” 206 Jefferson et al., “A Security Analysis,” p. 2. 

207 Steve Ellman, “Intent vs. Choice,” Broward Business Daily Review, Feb. 6, 2004, p. 1. 208 “Wexler Scores Victory in Federal Court; Judge Cohen Rejects Hood and LePore’s Attempts to Delay Until 

After Election,” Mar. 22, 2004, <http://www.house.gov/wexler/press_releases/Mar_22_04.htm> (last accessed Mar. 

25, 2004). 

209 H.R. 2239, 108th Cong., 1st Sess. (2003). 

210 Rush Holt, “On Election Day 2004, How Will You Know If Your Vote Is Properly Counted?, Answer: You 

Won’t,” news release, May 22, 2003, <http://www.holt.house.gov/issues2.cfm?id=5996> (last accessed Mar. 10, 

2004); H.R. 2239, 108th Cong., 1st Sess. (2003). 
 53

Mr. Holt’s legislation was referred to the House Committee on Administration in May 2003, 

where it currently awaits action.211 Senators Hillary Clinton and John Edwards also have 

introduced a bill to amend HAVA to require voter verification and improved security for voting 

technology.212

Officials at the state level have also undertaken steps to resolve problems. In Georgia, for 

example, the state senate considered two bills, approving one, that required election equipment to 

provide printed receipts.213 Receipts, however, will not be required until new federal guidelines, 

which also are expected to require a paper trail, take effect, and Congress provides funds for 

Georgia’s plan.214 California’s secretary of state, concerned with the security and accessibility of 

DRE technology, is reviewing these systems and has ordered that by July 2005, they provide a 

“voter-verified paper trail.”215 Despite the security that a printed receipt may offer, however, 

some argue that voting technology that can be programmed to record an incorrect vote can be 

programmed to falsify the receipt.216 

Legislators might do well to study automated banking, gasoline, car wash, grocery, and other 

cashier-less point-of-sale technology; overnight shipping companies may offer best practices for 

accumulating, securing and tracking ballots. Such retail systems follow high standards for 

registering, documenting, and verifying transactions, build in audit trails that pinpoint 

accountability, and apply penalties to those who break the law. 

Jurisdictions that have not replaced existing systems are unlikely to do so by November 2004.217

The process of acquiring new voting technology, including testing different equipment, selecting 

one or more, and certifying the selected equipment, is time consuming.218 Installing electronic, 

specifically DRE systems, may be cost prohibitive to state and local governments already in 

fiscal crises. It is estimated that placing touch screen DRE equipment in 88 percent of the 

190,000 precincts in the United States, assuming that the remaining 12 percent already have 

them, would cost $3.3 billion. With an average of 60 precincts per county, placing six DRE 

machines per precinct would cost approximately $1.2 million per county.219 

 

211 “Bill Summary & Status for the 108th Congress,” H.R. 2239, <http://thomas.loc.gov/cgi-bin/bdquery/z?d108: 

h.r.02239> (last accessed Mar. 25, 2004); H.R. 2239, 108th Cong., 1st Sess. (2003). 

212 S. 1986, 108th Cong. 1st Sess. (2003). Peter S. Canellos, “Stirring in Florida Bespeak 2000 Dispute,” Boston 

Globe, Mar. 16, 2004, p. A3. 

213 Meg Smothers, “Paper Receipts No Guarantee,” Atlanta-Journal Constitution, Feb. 23, 2004 (hereafter cited as 

Smothers, “Paper Receipts”) p. A15; “Senate Approves Delayed Paper Ballot Bill,” Associated Press, Mar. 18, 2004 

(hereafter cited as AP, “Senate Approves Delayed”). 

214 AP, “Senate Approves Delayed.” 

215 Ackerman, “Campaign Launched”; Ed Fletcher, “Senators Assail Touch-Screen Voting,” Sacramento Bee, Mar. 

12, 2004, p. A3 (hereafter cited as Fletcher, “Senators Assail”). 216 Smothers, “Paper Receipts,” p. A15. 

217 Fletcher, “Senators Assail,” p. A3. 

218 See Lipton, “Replacement Near,” for an example. 

219 Norman Garfinkle and Patrick Glynn, George Washington University, Institute for Communitarian Policy 

Studies, “Report on Election Systems Reforms,” July 2001, pp. 3–4. 
 54

The federal government must ensure that voters are not disenfranchised in November 2004, 

whether using advanced electronic technology or a punch card system. To do so, EAC should 

immediately begin verifying that states are well on the way to resolving any lingering problems 

from the 2000 elections. To ensure that all votes are counted, the government should require 

certification that any voting technology used is nondiscriminatory and provides for second-chance 

voting and voter verification. History offers myriad examples of using equipment, people, and 

processes to manipulate elections and disenfranchise voters. We owe it to ourselves and our future 

to have robust, well-designed election systems to preserve the bedrock of our democracy.220

CONCLUSION 

In 2001, in two reports and in testimony to Congress, the Commission issued recommendations 

to address problems it found in Florida and nationwide regarding the right to vote and to have 

one’s vote counted. HAVA provided solutions to numerous problems, and adopted many but not 

all of the Commission’s recommendations. However, HAVA enactment and implementation 

have been slow. For example, critical monies have not yet been distributed to the states. 

Moreover, Congress has never fully appropriated the level of funding authorized under HAVA. 

Thus, it will be difficult if not impossible for states to build the necessary election infrastructure 

by November. Indeed, 24 states have asked and received from the federal government waivers on 

replacing punch card and lever machines. Forty-one states have requested and been granted 

extensions to 2006 for implementation of the requirement for computerized statewide voter 

registration lists, which the Commission has considered vital to protecting voting rights. 

This report does not critique whether the decision to grant waivers was appropriate. However, 

the waivers together with the fact that Congress and the administration delayed appointing EAC 

commissioners set into motion a domino effect that resulted in subsequent other benchmarks also 

being missed. Thus, the potential is real and present for significant problems on voting day that 

once again will compromise the right to vote. Avoiding this will require unprecedented effort by 

all with authority and responsibility for implementing HAVA and voting generally, and will 

necessitate extraordinary cooperation and coordination between federal and state officials, as 

well as among various state and local officials. For starters, officials should adopt the 12 

suggestions proposed on page 38, which embody some of the Commission’s earlier 

recommendations and highlight the problems that are most urgently in need of attention given 

the current state of HAVA implementation and with only nine months to go before the 2004 

presidential election.

The federal government could consider adopting an emergency posture and use all available 

means to ensure that every eligible citizen can vote and have his or her vote counted. Securing 

voting rights was the result of many acts of courage, determination, and sacrifice. When the right 

to vote is infringed, whether by poor planning or intentional actions, the nation as a whole 

suffers. As President Lyndon Johnson foreshadowed in 1965, the denial to any group of citizens 

 

220 Johns Hopkins Study. 
 55

the right to vote should raise concerns about the system’s integrity as a whole.221 The 2000 

elections showed that, although the nation has come a long way, we are still far from reaching 

the goal of universal democratic participation. The 2004 elections will test again the nation’s 

resolve to ensure voting rights. 

 

221 Virginia E. Hench, “The Death of Voting Rights: The Legal Disenfranchisement of Minority Voters,” Case 

Western Reserve Law Review, vol. 48 (Summer 1998), p. 771. 
 56

Addendum 

Federal and State Voting Reform Progress—July 2004 

Introduction 

In conjunction with its April 9, 2004, briefing on voting and election reform, the U.S. 

Commission on Civil Rights prepared an election readiness briefing paper titled “Is America 

Ready to Vote?” The briefing paper described the Commission’s findings and recommendations 

on election vulnerabilities following the 2000 presidential election; the implementation of the 

Help America Vote Act of 2002 (HAVA), passed in response to the voting problems identified in 

the 2000 election; the national election reform inadequacies and potential pitfalls still facing the 

country; and the status of electronic voting system reform. This addendum provides an update to 

the Commission’s briefing paper and offers information on the most recent developments related 

to continuing efforts by federal, state, and local governments to implement the reforms under 

HAVA and address election preparedness inadequacies and potential pitfalls that may still 

jeopardize the fair and smooth administration of the upcoming fall elections. 

Felon Purge Practices 

As of July 2004, problems persist for states trying to maintain accurate statewide voter 

registration lists. For example, in Florida, controversy continues over the practice of purging 

suspected felons from voter registration rolls. Florida is among seven states that take away the 

right to vote from all ex-felons, regardless of whether they have paid their debt to society. The 

state re-enfranchises ex-felons who have served their sentences only if they apply for restoration 

of their voting rights. Those who do not, or do not successfully do so, are ineligible to vote and 

the state purges them from its rolls. As part of the purge verification process, suspected felons 

must be notified by state officials of their status before being removed. In June, the state of 

Florida announced that a backlog of 62,000 ex-felon applications for re-enfranchisement had 

been reduced to 8,000. As many as 600,000 former prisoners, however, have not applied for 

restoration of their voting rights and still do not have their rights restored.1

In May, the director of Florida’s State Division of Elections began asking local election 

supervisors to notify persons on the state’s purge list to give them the opportunity to challenge 

removal of their names. Many supervisors have delayed doing so, out of concern about the 

accuracy of the list.2 The director resigned abruptly in June amid reports that he was 

uncomfortable with the growing pressure to trim suspected felons from the voter rolls in time for 

 

1

 Gary Fineout, “Former Inmates Get Civil Rights Restored,” Miami Herald, June 18, 2004, p. B1. 2

 Gary Fineout, “State Elections Chief Resigns From Post,” Miami Herald, June 8, 2004, p. B6. 
 57

the fall elections.3 Some local election supervisors have indicated that they lack the staff, 

expertise, and money to purge their lists without causing the same kinds of errors that occurred 

in 2000.4

 Officials also expressed doubt that they will have enough time to verify all potential 

felons in their counties in time for the August 31, 2004, primaries.5

 

At their annual summer conference in June, the state’s election supervisors agreed that when 

disputes or uncertainty occurred, they would allow names to remain on voter rolls until eligibility 

could be determined definitively. The supervisors agreed to use multiple sources to verify 

convictions and identities of suspected felons. The Florida Department of Law Enforcement has 

stated that it will establish a page on the agency’s Web site so that supervisors and voters can 

correct errors. As in 2000, the department is also establishing a call center that will operate 12 

hours a day, including weekends, to handle criminal background inquiries.6

According to several newspaper editorials, opening the state’s purge list to the public would help 

expose potential problems and instill confidence in the state’s purge process.7

 After the Florida 

secretary of state initially refused to release the computer list of some 47,000 suspected felons to 

the public on the basis of protecting privacy rights,8 news media network CNN, U.S. Senator Bill 

Nelson (D-FL), and others sued the state for its release.9

 The Florida attorney general, who 

normally represents the state in litigation, was also critical of the decision to keep the list from 

the public, stating that he would have trouble defending the secretary of state’s interpretation of 

the law in court.10 On July 1, 2004, a state circuit court judge ordered the state Division of 

Elections to make the list immediately available to the public.11 

An analysis by the Miami Herald of the disclosed list revealed that more than 2,100 Florida 

voters whose rights were already formally restored through the state clemency process were 

erroneously included on the list.12 Some 1,600 of those granted clemency had not re-registered to 

vote. In a move criticized by local election supervisors and voting rights activists, the state 

originally directed local jurisdictions to require those ex-felons re-register before restoring their 

voting rights. While state officials maintained they were simply following the law, legal experts 

 

3

 Bob Mahlburg, “Elections Chief Resigns Amid Felon Debate,” Orlando Sentinel, June 8, 2004, p. A1; Fineout, 

“State Elections Chief Resigns From Post,” p. B6. 

4

 William March, “Glimmer of 2000 on Voter Rosters,” Tampa Tribune, June 7, 2004, p. A1. 

5

 May Bell and Bob Mahlburg, “Voting Chiefs: Purge Must Be Fair,” Orlando Sentinel, June 10, 2004, p. A1. 6

 Ibid. 

7

 “Elections Establishment Still Missing the Message,” Palm Beach Post, June 16, 2004, p. 12A; “Defend Voters 

Rights,” Florida Today, June 18, 2004, p. 10; “Openness That Counts,” Orlando Sentinel, July 6, 2004, p. A10. 8

 Jim Ash, “Groups: Publicize Criminal Voter List,” Palm Beach Post, May 27, 2004, p. 1A; “Defend Voters 

Rights,” Florida Today, June 18, 2004, p. 10. 9

 Lucy Morgan, “Voter List Lawsuit Recalls 2000 Turmoil,” St. Petersburg Times, June 10, 2004, p. 6B; Ash, 

“Groups: Publicize Criminal Voter List,” p. 1A. 

10 Bell and Mahlburg, “Voting Chiefs: Purge Must Be Fair,” p. A1. The suit is being defended by private attorneys 

hired by the secretary of state. Ibid. 

11 Steve Bousquet, “Felon Voters List Made Public,” St. Petersburg Times, July 2, 2004, p. 1A. 

12 Erika Bolstad, Jason Grotto, and David Kidwell, “Thousands of Eligible Voters Are on Felon List,” Miami 

Herald, July 2, 2004, p. A1. 
 58

stated the governor could choose to end the practice, and civil rights groups asserted that federal 

law prohibiting government officials from disqualifying voters over paperwork mistakes or other 

procedural barriers superseded state law.13 On July 7, 2004, the state reversed its position, stating 

that ex-felons granted clemency who had not re-registered to vote would not be deleted from 

voter rolls.14 Some local election supervisors stated they were leaning toward ignoring the 

requirement, and the state conceded that it could not force the supervisors to remove persons on 

the state’s purge list from voter rolls.15

A subsequent analysis by the Sarasota Herald-Tribune and the New York Times also revealed 

that the purge list failed to identify Hispanic ex-felons in far greater numbers than people of 

other races or ethnic groups.16 While Hispanics make up 17 percent of the state’s population, 

only one-tenth of 1 percent of persons on the purge list were Hispanic.17 The state admitted that a 

flaw in the method used to produce the list may have excluded Hispanic ex-felons.18 As a result, 

on July 10, 2004, the state announced it would no longer use the purge list of some 47,000 

suspected felons in its purge efforts.19 However, the Florida secretary of state indicated that local 

supervisors of elections would be required to find other ways to ensure that felons were removed 

from voter rolls.20

Addressing concerns about potential erroneous purges, such as those that occurred in Florida in 

2000, in April, Representative David Price (D-NC) introduced the Protect American Voters Act 

of 2004,21 which would require states to (1) notify, no later than 30 days before an election, 

individuals who are being removed from the voter rolls; (2) allow voters to appeal their removal; 

(3) rule on an appeal within 10 days; and (4) provide provisional ballots to voters whose appeals 

are pending at the time of the election. The bill, however, would not prevent states from 

removing actual convicted felons from voter registration rolls.22 In July, responding to the purge 

problems experienced by Florida this year, Representative Robert Wexler (D-FL) introduced the 

 

13 Bob Mahlburg and John Maines, “State Defends ‘Potential Felons’ List,” Orlando Sentinel, July 3, 2004, p. A1; 

David Kidwell, Jason Grotto, and Erika Bolstad, “Voting Rights Face a New Hurdle,” Miami Herald, July 3, 2004, 

p. A1. 

14 “Florida to Let Former Felons Vote,” Associated Press, July 8, 2004. 

15 Kidwell, Grotto, and Bolstad, “Voting Rights Face a New Hurdle,” p. A1; Gary Fineout, “State Won’t Try to 

Force 48,000 Voters Off Rolls,” Miami Herald, July 7, 2004, p. B1. 16 Chris Davis and Matthew Doig, “Hispanics Missing from Voter Purge List,” Sarasota Herald-Tribune, July 7, 

2004, p. A1; Ford Fessenden, “Florida List for Purge of Voters Proves Flawed,” New York Times, July 10, 2004, p. 

A13. 

17 Chris Davis and Matthew Doig, “Hispanics Missing from Voter Purge List,” Sarasota Herald-Tribune, July 7, 

2004, p. A1. 

18 Ibid. Fessenden, “Florida List for Purge of Voters Proves Flawed,” p. A13. 

19 John Pain, “Florida Scraps Flawed Felon Voting List,” Associated Press, July 10, 2004. 

20 Ibid. 

21 H.R. 4250, 108th Cong., 2d Sess. (2004). 

22 David Price, “Price Introduces the Protect American Voters Act,” news release, Apr. 29, 2004, <http://www. 

house.gov/apps/list/press/nc04_price/pava.html> (last accessed July 1, 2004); H.R. 4250, 108th Cong., 2d Sess. 

(2004). 
 59

Fair and Open Voting Standards Act of 2004,23 which is similar to the Protect American Voters 

Act, but requires notification no later than 90 days before the date of removal and no later than 

60 days before the date of an election. Also, under the bill, no removal would be permitted while 

an appeal is pending. 

Initiatives to Improve Electronic Voting Security, Audit Capacity, and Access 

In April, concerns over the security and reliability of direct recording electronic, or DRE, 

machines led the California secretary of state to ban four California counties from using DRE 

machines and order 10 other counties to improve security and reliability before using devices in 

November. The secretary of state, following the recommendations of a state panel, revoked state 

approval of touch screen voting machines manufactured by Diebold Election Systems, and 

ordered that counties buy only machines that provide voter-verified paper ballot receipts.24

Under the order, the 10 counties that use non-Diebold machines could keep them in service 

provided they (1) gave voters the option to use paper ballots, (2) allowed no connection to the 

Internet, (3) ensured that printouts could be made of ballots cast electronically, (4) allowed state 

officials to participate in technical reviews of randomly chosen machines on Election Day, and 

(5) submitted detailed documents to the secretary of state about testing, software, and inner 

workings of the machines.25 The measures were designed to answer concerns about the ability of 

voters to verify the accuracy of their ballots, permitting meaningful recounts as specified under 

California law, and securing voting systems against tampering and/or manipulation.26 

The secretary of state also requested that the state attorney general consider taking criminal or 

civil action against Diebold for allegedly installing machines that were not properly certified and 

then misrepresenting their status.27 However, a San Diego County grand jury subsequently issued 

a report (of no legal effect) supporting Diebold machines, and registered its disagreement with 

the state.28

 

23 H.R. 4758, 108th Cong,, 2d Sess. (2004). 

24 Greg Lucas, “State Bans Electronic Balloting in 4 Counties; Touch-Screen Firm Accused of ‘Reprehensible’, 

Illegal Conduct,” San Francisco Chronicle, May 1, 2004, p. A1; Kevin Shelley, secretary of state, California, 

“Decertification and Withdrawal of Approval of Certain DRE Voting Systems and Conditional Approval of the Use 

of Certain DRE Voting Systems,” <http://www.ss.ca.gov/elections/ks_dre_papers/decert1.pdf> (last accessed July 1, 

2004). 

25 Jim Sanders, “All Voting Machines Decertified But an Official Says 10 Counties Might Be Able to Get Approval 

Before the November Election,” Sacramento Bee, May 1, 2004, p. A3; Shelley, “Decertification and Withdrawal of 

Approval of Certain DRE Voting Systems and Conditional Approval of the Use of Certain DRE Voting Systems.” 

26 Shelley, “Decertification and Withdrawal of Approval of Certain DRE Voting Systems and Conditional Approval 

of the Use of Certain DRE Voting Systems.” 

27 Jim Sanders, “All Voting Machines Decertified,” p. A3. 

28 Helen Gao, “Touch-Screen Voting Machines Backed; County Grand Jury Report Is Favorable,” San Diego Union 

Tribune, May 28, 2004, pp. B-3:2,7; B-1:1; B-2:6. 
 60

In June, the state lifted the ban on Orange and Merced counties’ computerized voting systems, 

after both complied with the conditions imposed by the secretary of state.29 For example, Hart 

InterCivic, the manufacturer of the Orange County machines, agreed to hand over its source code 

for testing by the state.30 In contrast, Riverside, San Bernardino, Kern, and Plumas counties, 

joined by disability advocates, filed federal lawsuits seeking to reverse the ban.31 

Election officials elsewhere have also shown growing reticence toward electronic voting 

machines. Solano County, California, canceled its contract with Diebold as a result of the 

secretary of state’s action, and 20 of 31 counties given state approval to purchase Diebold DRE 

voting systems in Ohio have decided against doing so or are waiting until after the November 

elections to make decisions.32 

In addition, the League of Women Voters reversed its endorsement of paperless electronic voting 

systems as reliable alternatives to punch card and lever systems at its biennial convention in 

June.33 Delegates voted overwhelmingly in favor of a compromise resolution that supported 

“voting systems and procedures that are secure, accurate, recountable and accessible.”34 The 

reversal came after many delegates contended that paper ballots were the only way to safeguard 

elections from fraud, hackers, or computer malfunctions.35

A group of Maryland voters also filed suit against the Maryland State Board of Elections in April 

seeking to move state election officials to decertify their electronic voting machines. The 

plaintiffs claimed that the Diebold-manufactured machines did not comply with state and federal 

law, and should not be used until alleged security vulnerabilities had been resolved and voterverified paper audit trails instituted.36 The suit alleged that the machines were found susceptible 

to vote switching by computer experts.37 

Stories document continuing electronic voting machine malfunctions. In June, state officials in 

Florida conceded that Election Systems & Software electronic voting machines in 11 counties 

 

29 Stuart Pfeifer, “State Lifts Ban on O.C. E-Voting,” Los Angeles Times, June 11, 2004, p. B5; “Secretary of State 

Recertifies Orange County Touch Screen Voting Machines,” Associated Press, June 10, 2004. 30 Pfeifer, “State Lifts Ban on O.C. E-Voting,” p. B5. 

31 Ibid. Ian Hoffman, “Solano County Drops Diebold Voting System; Decision Follows California Secretary of 

State’s Call for Probe,” Oakland Tribune, May 26, 2004, Local and Regional News Section. 32 Hoffman, “Solano County Drops Diebold Voting System.” 

33 “Paperless Ballots Lose Voters League Backing,” Los Angeles Times, June 15, 2004, p. A13; Amy Keller, 

“Activists Rally on Ensuring Paper Trail for Ballots,” Roll Call, June 22, 2004; Rachel Konrad, “Women’s Group 

Drops Support for E-Voting,” Associated Press, June 15, 2004. 

34 Katharine Q. Seelye, “He Pushed the Hot Button of Touch-Screen Voting,” New York Times, June 15, 2004, p. 

A16; “In Brief/Washington, D.C.: Paperless Ballots Lose Voters League Backing,” Los Angeles Times, June 15, 

2004, p. A13. 

35 Rachel Konrad, “Women’s Group Drops Support for E-Voting,” Associated Press, June 15, 2004. 36 Peter Geier, “Suit Seeks to Pull Plug on AccuVote Machines,” The Daily Record, Apr. 22, 2004. 37 Johnathon E. Briggs, “Suggested Calif. Ban on Voting Equipment Heartens Md. Opponents,” Baltimore Sun, Apr. 

24, 2004, p. 3B. State election officials, however, maintained the voting machines were secure and that paper ballot 

receipts were not necessary. Ibid. 
 61

had software flaws that would make manual recounts impossible.38 The machines failed to 

provide a consistent electronic “event log” of voting activity if asked to construct what happened 

during an election.

39 A Miami-Dade elections worker also found that some Election Systems & 

Software machines failed to record 162 votes in an October local election.40 As a result, several 

coalition groups, including the American Federation of County, State and Municipal Employees, 

asked that the governor order an independent audit of the state’s touch screen voting systems, as 

had been done in Maryland.41 The state declined, stating that the flaws could be repaired, and 

expressed confidence in the state’s efforts to ensure a smooth election.42 Several voting rights 

groups then filed suit against the state in July to overturn a state rule that prohibits manual 

recounting of ballots cast with touch screen machines. The plaintiffs alleged in their suit that 

electronic voting machines were “known to malfunction and to be subject to malicious 

tampering.”43 

The growing trend in the demand for voter-verified audit trails is also reflected in several 

proposals recently introduced in Congress, despite continuing divisions in both the House and 

Senate over the need to amend HAVA to require such audit trails.44 While the degree of 

regulation contemplated in the legislation differs, all proposals nonetheless call for some type of 

voter-verified audit trail. On April 8, 2004, Senators Bob Graham (D-FL), Hillary Clinton (DNY), and Barbara Boxer (D-CA) introduced the Restore Elector Confidence in Our 

Representative Democracy (RESTORE) Act of 2004 amending HAVA to require voter-verified 

permanent records for electronic voting machines.45 Previously, all three senators had introduced 

separate legislation on the matter.46 In May, Senator John Ensign (R-NV) introduced another bill, 

the Voting Integrity and Verification Act of 2004 (VIVA), also seeking to amend HAVA by 

requiring equipment to produce a voter-verified permanent record.47 Unlike VIVA, the 

RESTORE Act requires public disclosure of voting system software, changes the audit trail 

compliance deadline from November 2006 to November 2004, requires federal certification of 

 

38 “Elections Establishment Still Missing the Message,” Palm Beach Post, June 16, 2004, p. 12A. 

39 “Flaw in Florida Touchscreens Could Hamper Manual Recounts,” news release, Associated Press, June 12, 2004. 40 Bob Mahlburg, “Coalition Wants Governor to Examine Voting Systems,” Orlando Sentinel, June 30, 2004, p. B5. 

41 Mary Ellen Klas, “Request for Review of Voting Gear Denied,” Miami Herald, June 30, 2004, p. B4. 42 Bob Mahlburg, “Coalition Wants Governor to Examine Voting Systems,” p. B5; Klas, “Request for Review of 

Voting Gear Denied,” p. B4. 

43 Jane Sutton, “Lawsuit Challenges Florida Ballot Recount Rules,” Reuters, July 7, 2004. 

44 Lou Dobbs, “Lou Dobbs Tonight,” broadcast program, transcript no. 062200cb.l10, CNN, June 22, 2004, 6 p.m. 

EST. 

45 S. 2313, 108th Cong., 2d Sess. (2004). 

46 On December 9, 2003, Senators Bob Graham and Hillary Clinton introduced two separate bills seeking to amend 

HAVA to require voter-verified permanent records for electronic voting machines—the Voter Confidence and 

Increased Accessibility Act of 2003 (S. 1980, 108th Cong., 1st Sess. (2003)) and Protecting American Democracy 

Act of 2003 (S. 1986, 108th Cong., 1st Sess. (2003)), respectively. In February, Senator Barbara Boxer introduced 

the Secure and Verifiable Electronic (SAVE) Voting Act of 2004 (S. 2045, 108th Cong., 2d Sess. (2004)), also 

requiring voter-verified permanent records. 

47 S. 2437, 108th Cong., 2d Sess. (2004). 
 62

technological security of voter registration lists, and requires voting machine hardware and 

software be certified by Election Assistance Commission (EAC) accredited labs.48 

In addition, Representative Steve King (R-IA) introduced the Know Your Vote Counts Act of 

2004 in the House in April requiring a voter-verified paper audit trail for all electronic voting 

machines by 2006.49 The legislation is less expansive, however, than the Voter Confidence and 

Increased Accessibility Act of 200350 introduced by Representative Rush Holt (D-NJ) in May 

2003. For example, in addition to requiring a voter-verified paper audit trail, Holt’s version bans 

the use of undisclosed software and wireless communications devices in voting technology and 

requires compliance with voter-verified paper trail requirements for the November 2004 

elections.51 

At the end of June, the Brennan Center for Justice and the Leadership Conference on Civil 

Rights released a report containing electronic voting preparation recommendations for 

jurisdictions with time and resource constraints. The recommendations included procedures for 

monitoring election glitches, as well as independent security review of machines and their 

software. The chairman of the Election Assistance Commission applauded the report and 

announced that he would study ways for the report’s recommendations to be incorporated in the 

work of the Commission.52 

EAC Guidance 

On May 5, 2004, the Election Assistance Commission conducted its first hearing. The EAC 

examined electronic voting issues and brought together computer experts, election officials, 

advocacy groups, and voting machine manufacturers. Some local election officials and advocacy 

group representatives who testified joined machine manufacturers in advocating the use of DREs 

as a convenient, secure, and accurate means of recording votes. Other speakers, however, 

including California Secretary of State Kevin Shelley and Johns Hopkins University computer 

security expert Aviel Rubin, expressed concern about the vulnerability of DREs and advocated 

voter-verified audit trails, including paper trails. The commissioners also expressed concerns 

about the power of vendors over the voting process. They noted that the vendors create the 

equipment, pay for certification testing, and have technicians play key roles in local election 

offices.53 

 

48 Bob Kibrick and Pamela Smith, “Verified Voting Legislation: Senate Bill Comparison,” <http://www.verified 

voting.org/legislation/federal/senate/senatebillcomparison.asp> (last accessed July 1, 2004). 

49 H.R. 4187, 108th Cong., 2d Sess. (2004). 

50 H.R. 2239, 108th Cong., 1st Sess. (2003). 

51 Kibrick and Smith, “Verified Voting Legislation: House Bill Comparison.” 

52 Brennan Center for Justice and Leadership Conference on Civil Rights, “Recommendations of the Brennan Center 

for Justice and the Leadership Conference on Civil Rights for Improving Reliability of Direct Recording Electronic 

Voting Systems,” <http://www.civilrights.org/issues/voting/lccr_brennan_report.pdf> (last accessed July 10, 2004); 

John Schwartz, “Report Calls for Fixes in High-Tech Voting,” New York Times, June 30, 2004, p. A18. 53 Dan Keating, “Paper Receipts Opposed for Voting Machines,” Washington Post, May 6, 2004, p. A8 
 63

The EAC held a second hearing in Chicago on June 3, 2004, examining problems including 

transition from optical scan, punch card, and lever machine voting systems, as well as the use of 

provisional balloting. Local election officials testified that they were not convinced that current 

electronic voting systems were technologically ready. Some local election officials also warned 

about predatory equipment manufacturers who push local officials to purchase systems that do 

not offer a verified paper trail and have yet to be tested.54 

Subsequent to the hearings, the EAC chairman announced that he would recommend the agency 

request all voting software vendors allow election officials to analyze proprietary source codes; ask 

every jurisdiction that uses electronic voting devices to implement enhanced security measures in 

November; invite every voting software vendor to submit its certified software to the National 

Software Reference Library at the National Institute of Standards and Technology; solicit 

information about suspicious electronic voting activity and request aggressive responses from the 

U.S. Department of Justice; and document incidents and record data concerning electronic 

equipment malfunctions in November.55 The chairman also announced the formation of a 15-

member Technical Guidelines Development Committee.56 The committee will be charged to work 

for nine months to draft standards for all voting systems used in the United States.57

Voter Identification 

Other incidents demonstrate the need for proper poll worker training on ID requirements. For 

example, during the June special election in South Dakota to fill a vacant U.S. House of 

Representatives seat, poll workers turned away voters who could not produce ID, in violation of 

laws that permit voters to complete an affidavit in lieu of ID.58 The ID requirement 

disproportionately affected Native Americans, who are less likely than the general population in 

South Dakota to have specified forms of ID such as driver’s licenses, and thus raised further 

allegations of discrimination through misapplication of the law.59 

 

A study released in April by the Brennan Center for Justice and the New York Public Interest 

Research Group also revealed that ID requirements under HAVA confused even local election 

 

54 David Mendell, “Chicago Balks at Video Voting; Election Officials Hesitate to Grab at Federal Dollars,” Chicago 

Tribune, June 4, 2004, p. C3. 

55 DeForest Soaries, “Chairman Soaries’ Remarks about Electronic Voting Security Strategy for the November 2004 

Presidential Election,” speech, June 8, 2004, <http://www.eac.gov/docs/Voting%20Security%20Strategy.pdf> (last 

accessed July 1, 2004). 

56 U.S. Election Assistance Commission, “U.S. EAC Forms Technical Committee to Create New Voting Standards,” 

news release, June 17, 2004, <http://www.eac.gov/news_061704_2.asp> (last accessed July 1, 2004). 57 Ibid. 

58 Adam Cohen, “Indians Face Obstacles Between the Reservation and the Ballot Box,” New York Times, June 21, 

2004, p. A22; “Group Alleges Election Irregularities,” Associated Press, June 10, 2004. 

59 Cohen, “Indians Face Obstacles Between the Reservation and the Ballot Box,” p. A22; “Lawmakers Debate 

Whether to Repeal Voter ID Law,” Associated Press, June 12, 2004. 
 64

boards. Some local boards did not understand the new requirements and others did not know 

what forms of ID were legally acceptable.60 

In June, Representative Henry J. Hyde (R-IL) introduced the Federal Election Integrity Act of 

2004,61 which would require individuals registering or re-registering to vote in an election for 

federal office to provide proof of U.S. citizenship. Official proof would include a U.S. birth 

certificate, naturalization card, or U.S. passport.62

 

60 Erika Rosenberg, “Officials Are Confused by Voter ID Law, Surveys Say,” Poughkeepsie Journal, Apr. 14, 2004, 

p. 7A. 

61 H.R. 4530, 108th Cong., 2d Sess. (2004). 

62 Henry J. Hyde, “Hyde Introduces Legislation to Prevent Voter Fraud,” news release, June 17, 2004, 

<http://gop.house.gov/item-news.asp?docId=59884> (last accessed July 1, 2004); H.R. 4530, 108th Cong., 2d Sess. 

(2004).