Matt Weil, Research Assistant, AEI-Brookings Election Reform Project

August 1, 2007

Fool me once, shame on you! Fool me twice, shame on me. For two hundred fourteen years, the federal government pursued a laissez-faire policy towards election administration. From voice counts, to paper ballots, to lever machines, to punch cards, to optical scan, and to direct recording electronic machines (DREs), what emerged from the states and the District of Columbia was a hodge-podge amalgamation of fifty-one separate elections. To update the system, Congress passed the Help America Vote Act (HAVA) of 2002, which mandated sweeping changes by deadlines many thought unreasonable and spent $3 billion in the process. Now we need to fix the problems again – only five years later.

Proponents and detractors have their arguments about HAVA, but a majority would agree that, since it passed – even with its flaws – the country has had better elections. Most people would also agree that HAVA’s deadlines for voting systems improvements proved to be unrealistic. In fact, many of them were missed and had to be extended. States were forced to buy machines and left to hope that the expensive purchases would be in compliance with federal regulations before such regulations were even established. The legislation now in Congress could lead us down the same road.

Senator Feinstein’s (D-CA) ‘Ballot Integrity Act of 2007’ (PDF) is likely to be the foundation of the next federal intervention in election administration. In many areas, the bill is long overdue. It requires states to train poll workers in a uniform way to meet state-imposed minimum standards, prohibits chief election officials from being involved in campaigning, and clarifies how voters are to be purged from voter registration lists. Most of the attention, though, has focused on the new technological requirement: DREs must have paper trails by 2010. This deadline was an improvement over the timeline proposed in Representative Rush Holt’s (D-NJ) bill, which required similar paper trails by the 2008 elections before the House leadership pushed back the deadlines late last week. Now the Senate bill needs to move back the deadlines as well.

It is hard to imagine that paper trails will not be in use nationwide in the near future. As of the 2006 election, twenty-two states already required paper trails for their DREs and many states are currently considering similar proposals. The Feinstein bill requires them as well: “The individual, durable, voter-verified paper record…shall be marked, printed, or recorded on durable paper capable of withstanding multiple counts and recounts without compromising the fundamental integrity of the records, and capable of retaining the information marked, printed, or recorded on them for the full duration of a retention and preservation period of 2 years.” This is a laudable goal and absolutely something that the federal government should strive to accomplish. The only way to be able to truly audit and recount the vote is to have durable paper record—be they DRE paper trails or the ballots used in optical scan systems. However, desire and practicality are two different things.

One common theme at AEI-Brookings Election Reform Project meetings and conferences is that shocks to the election system must be infrequent and well-planned. The Feinstein bill fails on both of those conditions. Many states have used their newly-purchased, expensive voting machines in only one federal election. For example, the state of Maryland is now scrapping its multi-million dollar investment in DREs for optical scan machines by 2010 all at taxpayer expense. It takes time to train poll workers to assist voters on new systems and it takes even longer for the voters themselves to become comfortable on new systems. Even with the public’s blessing, though, there is not time left to fully comply with the sweeping changes in the Feinstein bill.

Prior to the implementation of HAVA, the National Association of State Election Directors (NASED) provided a group of unpaid volunteers to certify the nation’s voting machines. HAVA required the newly-formed Election Assistance Commission (EAC) to “provide for the testing, certification, decertification, and recertification of voting system hardware and software by accredited laboratories.” Aside from the fact that the first EAC meeting was not convened until 2004, the EAC’s program for certification and decertification did not become fully-functional until January 2007, nearly five years after the legislation passed.

It should not surprise anyone that the government takes time to work. While we all may desire real change really quickly, recent experience tells us that such alacrity is asking for trouble. Senator Feinstein’s bill requires the new “durable” paper trails by 2010.

Completion by 2010 might be possible if there was not one other glaring problem: no one knows what a “durable” paper record looks like. The language in the bill sounds good, but the technology is not available on a large scale now and has not been accredited by the EAC. In essence, the bill requires the private sector, which makes all of the nation’s voting systems, to invent, test, and make available a certain kind of paper trail. All states will have to buy the new paper trails, and train their poll workers to use them correctly by 2010. It’s not that far away.

At a recent Senate Rules and Administration Committee hearing, Senator Saxby Chambliss (R-GA) raised concerns over whether the bill’s 2010 timetable could be met and worried that the bill could potentially harm states and localities by failing to provide enough federal funds. Doug Lewis, executive director of the Election Center, recommended that voting system changes be implemented in 2014. Such a deadline would give administrators enough time to make the changes correctly. Moreover, a 2014 goal would allow changes to be deployed during a lower-intensity, non-presidential “test year.” Whether it is cost or implementation, there are good reasons to move back the deadlines so that American citizens’ tax dollars go towards purchasing the best systems that will last for the longest time.

The Holt bill provides a stop-gap solution for the 2008 elections. While the deadline for “durable” paper trails is pushed back, the compromise legislation favored by the House leadership calls for the retrofitting of DREs with cash register-like paper trails until the “durable” paper trails are ready. This additional layer of complexity for voting systems is bound to cause a few snags on Election Day in jurisdictions new to paper trails, but the public demands accountability and the private sector has already said that it is ready to meet demand. Still, with the August recess, election administration legislation will not pass until September at the earliest, and a disorganized roll out of the temporary paper trails is likely to do very little to increase confidence in the election results while still coming at great expense.

Many changes proposed in the federal legislation are good ideas. I also understand the philosophical (and political) reasons some people would like to see the changes made as soon as humanly possible. I would too, but we should get it right this time; I for one am in no hurry to see my tax dollars appropriated to purchase another flawed system. The voting systems in place now have cost the federal government $3 billion. Congress needs to step back and realize that it will be made fools of for a second time if it once again mandates changes by deadlines it cannot successfully reach.


Matt Weil can be reached at mweil@aei.org.

Viewpoint is an occasional feature in which members of the AEI-Brookings Election Reform Project staff analyze various election reform issues.