Six months after the federal Help America Vote Act (HAVA) -- whose passage was sparked by the disputed 2000 presidential vote -- became law, the action on election reform has shifted to the state level. State governments are now charged with implementing the legislation, and while that poses the danger that some states will take the opportunity to cook up new methods for voter suppression, it also offers advocates of election reform the best chance in a long time to improve the way elections are carried out in the states. The issue of election reform has unfortunately received little attention as the drama has moved out of Washington and into state capitals. But the dangers and opportunities presented by HAVA make it a topic that liberals ignore at their own peril.
When HAVA -- which earmarked $3.8 billion to the states over the next three years for improvements in voting technology and election administration -- passed in October of last year, its complications and contradictions were at once apparent. On the one hand, Sen. Chris Dodd (D-Conn.), the chief legislative sponsor, said the law "will make the central premise of our democracy -- that the people are sovereign -- ring even more truly in the years to come." Common Cause hailed HAVA as "the first major piece of civil-rights legislation in the 21st century." And the NAACP described it as "a large step in the right direction."
At the same time, the Lawyers' Committee for Civil Rights Under Law announced that HAVA "not only fails to solve many of the problems of the 2000 elections, but also creates new barriers to voting." And the Mexican American Legal Defense and Educational Fund said the law will "create new barriers to voting for eligible citizen Latino voters." It doesn't take a genius to realize that this is a complicated piece of legislation -- and one whose ultimate impact will depend on what state governments do over the next few years.
The bill's detractors have focused principally on the voting identification requirements, which Republicans insisted upon as the price of a bipartisan bill. Indeed, HAVA requires that first-time voters who registered by mail show identification -- such as a driver's license, government ID card or other specified documentation -- in order to vote. A new voter must either produce such documentation at the polling place or take the potentially more complicated step of including copies of the identification with his or her voter registration mail-in card. In addition, when they register, voters must give their driver's license number or -- if they do not have a driver's license -- the last four digits of their Social Security number (if they have one). In cases where the state can verify these numbers, new voters who registered by mail and provided one of these numbers would not have to show identification at the polls.
Critics say these provisions will heighten the opportunities for confusion and voter intimidation. Some envision partisan operatives fighting for victories with "Ballot Security Squads"; others worry about the role of election officials, who, as a group, have a long history of suspicion or outright hostility toward new voters, particularly voters of color and newly naturalized citizens. Some states have already introduced legislation to enact even more rigid identification requirements in the guise of complying with HAVA. The Iowa House and Senate recently approved a bill that would distort the federal law by requiring all voters to show ID prior to casting a ballot. Similar bills are quickly moving through the legislatures in Colorado, Kansas, Mississippi, Montana, South Dakota and other states, and they may soon land on the governor's desk in those places. Civil-rights groups, democracy-reform advocates, election officials and legislators who care about increasing participation will have to fight hard -- probably in court, ultimately -- against provisions that would discriminate against poor voters, voters of color, young people or new citizens.
But all this is by no means the full story. HAVA contains some elements that should improve the election process greatly. These include requirements that states allow voters to correct mistakes in their ballots and allow them to cast provisional ballots if their names do not appear on the registration list or -- for first-time voters who registered by mail but whose driver's license or Social Security number was not verified -- if they do not have IDs. HAVA also includes requirements that polling places have at least one fully accessible and private voting machine for voters with disabilities, and it requires machines that will allow voters to utilize an alternative language in places that are required to by Sec. 203 of the Voting Rights Act. The bill requires states to lower the frequency of machine errors in counting ballots below specified levels, and to create integrated, computerized, statewide voter registration lists. It also allows federal funds to be spent on better training of poll workers and voter education.
Of course, the key to successful implementation of all these requirements is the carrot of substantial federal funding. Here the news is a little mixed, but, on balance, good. For the first year of the bill's implementation, $1.5 billion has already been appropriated. While this is only 70 percent of the first-year funds called for in the bill, it is still far more than some observers of congressional budget maneuvering believed would be possible. It will likely take an annual battle to ensure that Congress comes up with the funds necessary to prevent any element of the bill from being given short shrift. Already, for instance, the level of funding allocated to the disability portion of the bill is far less than originally called for.
Another important feature of the bill is the mandated participation process. In order to apply for federal funds, each state must develop a plan detailing how the state will comply with HAVA mandates and improve elections. This plan is to be developed by a commission, appointed by the chief election official in each state, which in most states is the secretary of state. This commission must include the chief election officials of the two largest jurisdictions in the state, representatives of the disability community, and "other stakeholders and citizens." The commission must develop a plan and offer opportunities for public comment prior to submitting it to the federal government. In addition, the governor must sign off on the plan, and every legislature will undoubtedly have to act to bring the state into compliance with HAVA's provisions and procedures. There is no specified time limit for the commissions to be formed. Already some states are shining while some are failing miserably. In New York, when the Board of Elections appointed a broadly representative commission, Gov. George Pataki named a new chief election official and created a small, tightly disciplined committee. On the other hand, in Connecticut, Illinois, Rhode Island and Texas, good and diverse commissions have been formed -- and, in Rhode Island's case, the commission committed to a series of six public hearings to be held around the state. In many states the commission is not yet formed, and there is still a great opportunity for reformers to be on the commissions or to respond to the initial plans.
What should election-reform advocates be seeking from this process? The first and most concrete priority of reformers is to make sure that the machine replacements and other procedural fixes maximize participation opportunities. The machines must work and meet HAVA requirements. They must permit citizens with disabilities to cast private votes. Machines should also be programmed in such a way that they can easily provide language assistance to voters with limited English proficiency and can accommodate forms of ranked voting such as Instant Runoff Voting. Sufficient funds need to be set aside to complete a computerized list process that provides access and real-time updating for officials at the precinct level. And training programs need to be provided for an expanded and more knowledgeable pool of election workers.
The second major challenge is to ensure that the newly created voter-identification processes meet federal requirements without adding additional hoops and burdens. It is especially important that state laws provide for acceptance of the kinds of identity documents that poor people use, such as Social Security check statements, Section 8 rent statements, homeless shelter ID cards and Electronic Benefit Cards -- not just drivers' licenses and student IDs. In addition, there must be a recognition that the databases used to verify a voter's identity are not completely accurate -- whether because names have been changed by marriage, or because names of Asian American voters have been inverted, or because common names can be held by more than one person. It is therefore crucial that the ID requirements be implemented in a scrupulously nondiscriminatory way.
But even beyond these two fights, reformers have an opportunity to raise broader issues of participation. For instance, the federal funds available for "voter education" could be used to create a program within the judicial and correction departments to ensure that citizens with felony convictions know of their rights to vote after leaving prison or completing their sentences. Federal funds can be used to pay for the additional poll workers needed to adopt a program of Election Day Registration (EDR), in which voters can register and vote at the polls on election day. States with EDR have turnouts 8 percent to 15 percent higher than the national average. EDR would also cut down significantly on the number of provisional ballots cast, assuring voters that their ballots will be counted while saving election officials the time and cost of verifying thousands of provisional ballots. Connecticut, Hawaii, Nevada, West Virginia and North Carolina are all considering EDR as part of their election-reform debates. In addition to EDR, every state has its own election-reform ideas that have been discussed for years but not acted upon. This is the chance to move them.
The jury is still very much out on what the long-run impact of HAVA will be. But what is crystal clear is that this is a moment when state-level work can truly lead to change. Groups in the national civil-rights and voting-rights communities, under the auspices of the Leadership Conference on Civil Rights, have been working together to encourage the best possible implementation of the law, beginning with the appropriation of the full amount of funds authorized by the legislation. The real battle, however, will be in the states. Effective organizing for an expansive and inclusive democracy over the next several months will create genuine new opportunities to expand the vote -- but there is no time to waste.
Miles Rapoport is president of Demos, a national research and advocacy organization. He was Connecticut's secretary of state from 1995 to 1999 and served 10 years in the Connecticut legislature.
For more information, check out the HAVA implementation section of the Demos Web page -- which will track developments in the states, share best practices and materials from state to state and connect state advocates to appropriate national partners -- and the Leadership Conference on Civil Rights Web site.