New standards for voting equipment in development
Local elections officials still facing a variety of HAVA compliance issues

By Alysoun McLaughlin
Associate Legislative Director

When President George W. Bush signed the Help America Vote Act (HAVA) in October 2002, county officials greeted the new law with a combination of relief and consternation.

There were many reasons for relief. The federal government was finally going to pick up part of the tab for administering elections for federal office. A new federal agency was going to update existing technical guidelines for voting equipment and take over the overburdened testing and certification process. Counties that wanted to replace their much-vilified punch card voting equipment would be able to participate in a federal buy-out.

After months of intense lobbying by NACo, NACRC and other organizations representing state and local officials, the final legislation left most decisionmaking in the hands of state and county officials rather than federalizing elections in Washington, D.C.

However, there was also much cause for consternation. Federal funding through the appropriations process was already proving difficult to secure. It was unclear how long it would take for the new Election Assistance Commission (EAC) to get up and running. Meanwhile, the law set an ambitious deadline of Jan. 1, 2006 for states and counties to meet mandates that would prove to be expensive and difficult to implement - including implementation of statewide voter registration databases and deployment of voting equipment that would permit disabled voters to vote secretly and independently in every polling place in the country.

Perhaps no aspect of the law better illustrates the promise - and frustration - of the federal government’s new role in election administration than the update of federal guidelines for voting equipment.

History of Federal Voting System Standards
Many of the issues raised by critics of electronic voting are not new and neither is the federal role in addressing them.

In 1975, the National Bureau of Standards (now the National Institute of Standards and Technology) issued a report that cited failings in the use of computing technology for tallying votes and called for national performance standards.

Ten years later, Congress appropriated funds for such a project and after five years of development, the FEC issued the first Performance and Test Standards for Punchcard, Marksense and Direct Recording Electronic Voting Systems in 1990.

By the time HAVA was signed into law, most states had adopted the standards and required new voting equipment to be certified by independent testing labs overseen by the FEC and the National Association of State Election Directors.

The FEC was engaged in a process of updating its standards to address new and emerging technology; these revised standards would be issued in 2002, but would not comprehensively address key concerns of HAVA, such as human factors and the use of voting equipment by individuals with disabilities.

HAVA transferred the staff and responsibility for these standards from the FEC to the new Election Assistance Commission and set forth a formal process for updating these standards with leadership from the National Institute of Standards and Technology. NACo, NACRC and other organizations representing state and local officials were provided the opportunity to sit on an advisory panel along with technical experts and representatives of voter advocacy organizations.

Harris County, Texas Clerk Beverly Kaufman, a NACRC appointee, is serving as chair of the Board of Advisors and Maricopa County, Ariz. Recorder Helen Purcell is representing local election officials on NIST’s Technical Guidelines Development Committee.

Although the updated standards would remain voluntary, many states plan to use them in determining how best to implement the Help America Vote Act. Congress gave states two years to do so by requiring the EAC, in cooperation with NIST, to issue updated voting systems on Jan. 1, 2004.

Still in Development
Because of delays in establishing and funding the commission, the EAC and NIST were unable to meet the 2004 deadline specified by HAVA. Seventeen months later, the voting system standards are still in development, and NIST has warned that it will not complete a new redraft of the standards prior to the deadline for HAVA implementation.

What happened? The commission got off to a rocky start at first when members were not appointed until 10 months after the statutory deadline in HAVA. They operated without an office or staff for the first four months; NIST received no dedicated funding in the first year for its work on voting systems standards. The Technical Guidelines Development Committee responsible for drafting the standards was finally appointed in July 2004, seven months after they were supposed to complete their work.

Nonetheless, the EAC and NIST resolved to provide useful guidance to state and local officials struggling to comply with HAVA by the statutory deadline of Jan. 1, 2006. Mindful of the major concerns of the state and local officials who are making equipment purchasing decisions, NIST focused its efforts first on the preparation of preliminary requirements for accessibility and usability of voting systems for individuals with disabilities and on the security of voting systems.

Voting systems guidelines - a little too late
A document titled Voluntary Voting System Guidelines Version 1, Initial Report, was forwarded to the EAC on May 9. This document augments the 2002 requirements and focuses on new guidance of the highest priority, such as accessibility and security. It provides some criteria for evaluating printer technology that permits voters to verify a printed copy of their ballot, technology that is not addressed in the existing version of the standards.

Once the EAC submits these recommendations for publication in the Federal Register, they will be made available for three months for public comment and approval before final action can be taken - meaning that counties cannot wait for even these limited guidelines to be finalized before making their decisions about purchasing new technology. There is a very real danger that some states and counties will purchase equipment to meet the deadlines that will subsequently fail to meet revised standards that may not be issued until in 2006.

‘Wholesale Changes Unrealistic’
Michael Kerr of the Information Technology Association of America outlined the problem to the EAC at a hearing on May 25. "Under a best-case scenario, it will be difficult for states and counties to meet the HAVA deadlines," he testified. "Voting equipment vendors and their customers may need two to three years to absorb and adjust to the new guidelines," and it is "unrealistic to expect that vendors, the independent testing labs and customers... will be able to make wholesale changes to current products and get those products certified and into the field for a national election in November 2006."

One possible solution that emerged at the recent EAC hearing is grandfathering technology that meets the 2002 standards. By itself, however, any grandfather clause in the voting system standards would not lift the burden from states and counties of purchasing new accessible voting equipment before 2006 - and then potentially having to replace or upgrade it in the near future to meet the federal standards.

NACo has been calling for a two-year delay of the deadlines in HAVA to allow counties to delay purchasing new equipment until the voting system standards are finalized. However, many federal lawmakers are uncomfortable with the prospect of reopening the law, and it is highly unlikely that new authorizing legislation will be written and adopted prior to Jan. 1.

The most feasible alternative appears to be including language in federal appropriations legislation that would prohibit the Justice Department from using its funding to enforce provisions of HAVA that require many states and counties to purchase new polling place equipment. In effect, such language would grant a one-year reprieve from the requirements of HAVA.

Although such an amendment has so far failed to gain momentum, Congress will not finalize appropriations legislation until later this fall. An increasing number of county officials are asking their members of Congress to do something about the Help America Vote Act.