HAVA's unintended consequences: a lesson for next time.

• Author: Fail, Brandon
• Position: Help America Vote Act of 2002

On October 29, 2002, President Bush signed into law the Help America Vote Act of 2002 (HAVA), a watershed in American election law. (1) Passed in the wake of the 2000 election-following Florida's "dimple" and "chad" fiasco and its culmination in Bush v. Gore (2)--HAVA was a comprehensive reform package aimed at nearly all aspects of American elections. The Act set out to secure individual voting rights, set national standards for acceptable voting machinery, and enhance voting opportunities for members of the military and persons with disabilities. Congress for the first time earmarked federal money for state procurement of election equipment and established a new federal agency to certify and test voting systems and to oversee the grant programs. (3)

HAVA provided fairly generous funding to the states to meet these goals. (4) The Act did not require states to accept funding or follow its rules, but it did require states taking federal dollars to meet certain conditions. States that used punch-card machines (which received much of the blame for the problems in Florida) or lever-operated machines (which created barriers to voting for the elderly, vision-impaired, and other disabled citizens) in the 2000 election were required to replace all such machines with new equipment certified to meet various standards. (5) And in all states accepting HAVA money, the Act required each voting precinct to operate at least one polling machine capable of accommodating disabled voters. (6) States were required to make these upgrades by January 1, 2004, although a two-year extension was permitted for good cause. (7) Most punch-card and lever states took advantage of this two-year extension, (8) so the effective deadline for equipment upgrades was January 1, 2006.

Now that this deadline has passed, the long-lasting effects of the rapid upgrade movement that HAVA spurred are starting to become clear. This Comment points to one such effect: HAVA's strict four-year timetable has encouraged and entrenched the practice of purchasing election equipment, despite the fact that leasing may well be a better option. By encouraging purchases, HAVA may have led--and may continue to lead--to relatively low levels of investment and innovation in the market for voting machines. Worse still, HAVA might also ensure that future upgrades occur only infrequently and at great cost to state and local election agencies.

1. HAVA AND THE REPLACEMENT OF VOTING MACHINES

   The 2000 election exposed a number of fundamental problems that had been lurking in this country's election system. Voter registration systems were decentralized, ill managed, and notoriously problematic on election day. (9) Precincts around the country lacked any means of allowing voters not on the polling list to vote provisionally or to challenge their exclusion after the fact. (10)

   But the problem of voting machinery loomed largest in Congress, (11) as lawmakers contemplated the unreliability of the punch-card and lever voting machines used during the 2000 election. Voters using punch cards often failed to align the card behind the ballot perfectly, thereby casting votes for the wrong candidates, and the machines sometimes failed to punch out the perforated chad on the ballot, thereby nullifying the intended vote. (12) Lever machines, which required voters to click switches corresponding to their chosen candidates and then pull a heavy lever to cast their votes, created barriers for elderly and handicapped voters, who were often unable to pull the lever or reach the switches. (13) By the end of 2000, Congress found that "[l]arge portions of the American public [had] lost confidence" in these antiquated voting machines. (14) HAVA was thus enacted to enable the states to take advantage of technological advances, including electronic equipment that seemed to promise greater accuracy and accessibility. Outdated and discriminatory equipment was to become, in Congress's words, "a part of our history, not our future." (15)

   Overall, HAVA authorized $650 million for appropriation to the states, half of which was devoted exclusively to the replacement of punch-card and lever machines, (16) and it also made available a larger pool of money for general use by the states. (17) Crucially, any money unspent by the final deadline of January 1, 2006 was to be repaid to the federal government. (18)

   In response to this time pressure, most states have taken and spent their federal grants. Between 2002 and 2004, many states took a conservative stance, preferring a wait-and-see approach to evaluate the success of particular machinery elsewhere before acquiring it. In Missouri, for example, only four of the thirty-seven districts using punch-card machines in 2002 had replaced them in time for the 2004 election; most districts were hesitant to act before others had tested the equipment. (19) But by 2006, at least thirty states had begun to upgrade their voting machinery, financing the change mainly with HAVA money. (20)

   HAVA permits the states to use federal funds to acquire new machines in virtually any form of transaction, whether "by purchase, lease, or such other arrangement as may be appropriate." (21) Although most...