U.S. ELECTION ASSISTANCE COMMISSION

1225 New York Ave. NW – Suite 1100 

Washington, DC 20005

July 20, 2005 

 

EAC Advisory 2005-004: How to determine if a voting system is compliant 

with Section 301(a) – a gap analysis between 2002 

Voting System Standards and the requirements of 

Section 301(a)

The United States Election Assistance Commission (EAC) has received a 

number of inquiries from several states as to whether one or more particular voting 

systems comply with Section 301(a) of the Help America Vote Act of 2002 (HAVA). 

In addition, in one of its recent public meetings, EAC was asked to conduct an 

analysis to identify the gaps between the 2002 Voting System Standards adopted by 

the Federal Election Commission (FEC) and the requirements for voting systems 

under Section 301(a) of HAVA. EAC is not required by HAVA to preclear or 

approve voting systems purchased by states and local election jurisdictions. 

Furthermore, EAC does not believe that it was the intention of Congress or HAVA 

for EAC to assume this role. However, it is evident that states and local election 

jurisdictions as well as testing laboratories are in need of information that will help 

in determining whether a voting system meets the threshold requirements of 

Section 301(a). Thus, EAC offers the following analysis of Section 301(a) in light of 

the 2002 Voting System Standards. 

Title III of HAVA, entitled “Uniform and Nondiscriminatory Election 

Technology and Administration Requirements,” imposes certain requirements upon

states and local jurisdictions conducting federal elections. Section 301(a) sets forth 

the standards that voting systems must meet after January 1, 2006. Those 

requirements include functions and features that, among other things: (1) allow the 

voter to review his or her selections privately and independently prior to casting a 

ballot; (2) allow the voter to change his or her selections privately and 

independently prior to casting a ballot; (3) notify the voter when he or she has made 

more selections in a single race than are permitted (overvote); (4) provide for the 

production of a permanent paper record suitable to be used in a manual recount; (5) 

provide voters with disabilities, including visual disabilities, the same opportunity 

for access and participation (including privacy and independence) as for other 

voters; (6) provide accessibility in minority languages for voters with limited 

English proficiency as required by the Voting Rights Act of 1965; and (7) provide for 

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an error rate in operating the voting system that is no greater than the error rate

set forth in Section 3.2.1 of the 2002 Voting System Standards adopted by the 

Federal Election Commission (FEC). 

Although the 2002 Voting System Standards set forth measurable standards 

that predict compliance with some of the Section 301(a) requirements, those 

standards do not provide sufficient and adequate guidance as to what is required to 

meet the accessibility requirements of Section 301(a)(3); do not prescribe testable 

measures for language accessibility required by Section 301(a)(4) of HAVA; and do 

not prescribe standards that adequately explain the requirements for overvote 

notification required by Section 301(a)(1) of HAVA. As such, EAC issues the 

following policy statement to identify the gaps between the 2002 Voting System 

Standards and the requirements set forth under Section 301(a) of HAVA and to 

explain what is needed to meet the requirements of Section 301(a) above and 

beyond the testing requirements established in the 2002 Voting System Standards. 

Section 301(a)(1):

The requirements of Section 301(a)(1) of HAVA are met if the voting system 

(1) conforms and complies with Section 2.4.3.3 of the 2002 Voting System Standards 

and (2) notifies the voter through a visual and/or audio message prior to casting the 

ballot when the voter makes more selections than are legally allowed in a single 

race or contest (overvote): 

(a) that an overvote has occurred and 

(b) the effect of overvoting. 

Following that notification, the voting system must allow the voter to change his or 

her selection(s), if so desired. Voting systems that preclude and prohibit overvoting 

meet this requirement. Notwithstanding the above, certain paper ballot voting 

systems may meet the overvote requirements of Section 301(a)(1)(A)(iii) of HAVA by 

meeting the requirements set forth in Section 301(a)(1)(B). 

Section 301(a)(2):

The requirements of Section 301(a)(2) of HAVA are met if the voting system 

conforms and complies with Sections 2.2.5.2.1 and 2.5.3.1 of the 2002 Voting System 

Standards. 

Section 301(a)(3):

 

Section 301(a)(3) of HAVA requires that by January 1, 2006, at least one 

voting system in each polling place be accessible to persons with disabilities such

that the voting system allows an individual with a disability the same access and 

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opportunity to vote privately and independently as is afforded a non-disabled voter. 

Compliance with Section 301(a)(3) requires that the voting system is accessible to 

persons with disabilities as defined by the Americans with Disabilities Act, 

including physical, visual, and cognitive disabilities, such that the disabled 

individual can privately and independently receive instruction, make selections, 

and cast a ballot. However, accessibility involves more than the technical features 

of the voting system. The accessible voting system also must be used in a manner 

that is consistent with providing access for disabled voters (e.g., the accessible 

voting system must be set up for use in a space that is accessible to a disabled voter 

who uses a wheelchair). 

Conformance with Section 301(a)(3) is a complex matter, which must take 

into account the disability of the voter, the advancement of technology and its 

availability, and the efforts of the elections officials to make the voting process 

accessible to disabled voters in a private and independent manner. The following 

are some factors that must be considered in determining accessibility in 

conformance with Section 301(a)(3) of HAVA: 

(1) Section 2.2.7 of the 2002 Voting System Standards; 

(2) Section 2.4.3.1 (a) of the 2002 Voting System Standards; 

(3) Section 3.4.9 (a-e) of the 2002 Voting System Standards; 

(4) The voting system must afford a disabled voter the ability to perform the 

same functions (e.g., receiving and reading the ballot, making selections, 

reviewing selections, changing selections, and casting the final ballot) as 

are afforded to a non-disabled voter. These functions may be provided to 

the disabled voter through features of the voting system that are different 

than those used by non-disabled voters. The disabled voter need not and 

in many cases cannot have an identical voting experience as a nondisabled voter (e.g., a voter with a visual disability is afforded the same 

access to reading the ballot as a sighted voter when the ballot is read to

the visually disabled voter using an audio component of the voting 

system).

(5) Accessibility of the voting system to the voter includes accessibility to all 

equipment needed to cast and count ballots. Many jurisdictions use a 

paper ballot voting system that requires the voter to submit his or her 

own ballot after casting for purposes of ballot counting. Where such 

voting systems are in use, such jurisdictions must to the extent reasonably 

and technologically possible afford a disabled voter the same ability to 

submit his or her own ballot, in a private and independent manner, as is 

afforded a non-disabled voter. In this example, visually disabled voters 

must be allowed to submit the ballot independently, as the disability is 

one that is capable of being accommodated, and technology and practice

provide a means that can be used to allow the visually disabled voter to 

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submit a ballot with the same degree of privacy and independence 

afforded to a sighted voter (e.g., a privacy sleeve). 

(6) There may be certain disabled voters whose disabilities prevent them 

from voting independently (i.e., without assistance from a person of their 

choosing or a poll worker). While HAVA requires voting systems to allow 

independence and privacy, it does not preclude a disabled voter from 

requesting and obtaining the assistance of another person as provided in 

Section 208 of the Voting Rights Act of 1965. 

(7) Section 301(a)(3)(B) contemplates that an accessible voting system can 

include a direct recording electronic (DRE) voting system or other voting 

system equipped for individuals with disabilities. This advisory should 

not be read to preclude the innovation and use of accessible voting 

systems other than DREs for purposes of meeting this requirement. 

Section 301(a)(4):

The minority language requirements of Section 301(a)(4) are met if the voting 

system complies with the minority language requirements of the Voting Rights Act 

of 1965 (contained in Section 203 as well as Section 4(f)(4)) and the implementing 

regulations found at 28 C.F.R. Part 55 and 67 F.R. 48871 (July 26, 2002). The 

voting system must provide all information, excluding the names of the candidates, 

that would otherwise be provided by the voting system in English (whether written 

or oral) in the language(s) that the voting jurisdiction is required to provide 

materials pursuant to the Voting Rights Act of 1965 and its regulations as 

referenced above. 

 Section 301(a)(5):

The requirements of Section 301(a)(5) are met if the voting system error rate 

does not exceed that established in Section 3.2.1 of the 2002 Voting System 

Standards. 

 

Gracia Hillman, Chair Paul DeGregorio, Vice Chairman 

Ray Martinez III , Commissioner 

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