Molly Reynolds, Research Assistant, AEI-Brookings Election Reform Project

August 1, 2007

As the two primary bills aimed at further reforming the federal election system move through Congress—one (PDF) in the House, chiefly sponsored by Representative Rush Holt (D-NJ), and one (PDF) in the Senate, authored by Rules Committee Chairwoman Dianne Feinstein (D-CA)—most of the attention is focused on new requirements for voting systems. Terms like “durable paper,” “manual audit capacity,” and “optical scan” are dominating the debate, which is leaving a key facet of the proposals out of the spotlight. What would the bills mean for the Election Assistance Commission?

The EAC has received its share of attention over the past year dealing with controversies regarding changes made to a contract-authored draft report on voter fraud and allegations that it handled improperly a different commissioned study on voter identification requirements. However, these high profile controversies do not appear to have worried Congress as it contemplates further changes to the nation’s election system. Both Holt and Feinstein’s bills would make significant changes to the scope of the EAC’s authority and responsibility, but this expansion has not been the subject of significant debate.

Take first the Holt bill, which includes new responsibilities for the EAC in its mandate that voting systems produce a permanent paper record. In order to accredit new voting systems, the Holt legislation calls for the creation of an escrow account into which voting system manufacturers would pay in order to cover the costs of certifying the machines they make. The EAC would then randomly select, from among a group of labs it is responsible for accrediting, a facility to perform the testing and use the funds in the escrow account to pay for it. In addition to administering this process, the EAC would be responsible for developing standards for which labs are sanctioned to perform the testing (including guidelines to ensure that testing facilities avoid conflicts of interest). The agency would also have to create a schedule of fees for manufacturers—and do it all by January 1, 2008. Under the legislation, furthermore, new machines would not only have to be certified by accredited labs, but would also undergo random, post-election manual audits—which, of course, need their own set of standards, to be authored by March 31, 2008.

If the EAC’s new responsibilities under the Holt bill seem significant, the Feinstein bill goes even farther. It not only calls for a similar accreditation process for labs and an escrow account for machine testing, but also makes the certification of voting-related software by the EAC mandatory, rather than voluntary (as it is now). Accompanying this process would be a set of “emergency certification” procedures, developed and administered by the EAC. The legislation also requires the EAC to “study, test, and develop best practices to enhance the accessibility of vote verification mechanisms” and to assume other new responsibilities: the creation and administration of an Audit Guidelines Development Task Force, guidelines for pollworker training curriculum and for early voting, standards for accrediting election observers, and a study to “establish benchmarks for the distribution of an equitable number of pollworkers, and other election resources.”

In addition, the agency would be required to formulate a new “residual vote benchmark.” Intended to be a measure of the error rate of the voting system in counting votes, the residual vote rate refers to those ballots cast that do not produce a valid vote in a particular race, and include overvotes, spoiled or uncountable votes, and undervotes. While measuring the number of residual votes presents its own challenges, the legislation also requires the EAC to find a way to account for intentional undervotes in developing its benchmark. Once established, the benchmark would then serve as a goal for states as they conduct their elections.

While these new mandates vary in their deadlines for implementation—some components must be accomplished by 2008, some by 2010—it is unequivocally clear that they represent a significant expansion of the EAC’s responsibility. They would mark a significant challenge for even the most efficient federal agency, a distinction from which the EAC falls far short. In addition to its recent troubles with contracted research, the agency also missed the deadline, imposed by HAVA, for issuing guidelines on voting system standards by almost two years, releasing them in December 2005 instead of by January 1, 2004. Similarly, it took nearly five years—until January 2007—after the passage of HAVA for the current, voluntary system certification program to be fully implemented.

Highlighting the EAC’s past troubles provides an incomplete picture, however; some of the EAC’s problems might have been prevented if it had received more comprehensive support from other federal actors. Why did the agency miss the system standards guidelines deadline by almost two years? It certainly didn’t help that the four commissioners weren’t appointed until December 2003—again, over a year after HAVA was signed into law. Without commissioners, let alone staff and any other kind of operational capabilities, it was impossible for the Commission to meet the January 2004 deadline. Even after the commissioners were finally appointed, they were supported by only seven staff members in that critical first year, which certainly didn’t help matters.

To put the EAC’s staffing and funding problems in perspective, it may be helpful to compare it to the other federal agency with major election-related responsibilities: the Federal Election Commission (FEC). While the EAC had a $14 million budget for 2006 and 26 fulltime employees, the FEC had $55 million to spend and 391 employees available to carry out its responsibilities. The comparison may not be perfect—the FEC has an undoubtedly broader mission and a much longer institutional history—but it does help bring the problem into stark perspective. Neither the Holt nor Feinstein bill is likely to make much headway in resolving these operational issues. Take, for example, the expanded certification program, including the ongoing administration of an escrow account, which represents one of the EAC’s more significant new responsibilities under both pieces of legislation. While Holt’s bill authorizes appropriations to pay for the new initiative, it does not attach any kind of dollar figure; Feinstein’s version is completely silent on the issue.

As the debate over Holt and Feinstein’s proposals continues, then, several important questions should be added to the mix. Is the EAC up to the tasks with which the legislation entrusts it? Does the agency need additional staff and funding in order to be effective in carrying out its new responsibilities? Or would all the difficulties that the Commission experienced after HAVA simply be repeated? These questions may seem insignificant when compared to the massive burden the bills’ paper trail provisions will place on state and local governments, but they are no less important and deserve serious consideration.


Molly Reynolds can be reached at mreynolds@brookings.edu.

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