Making Votes Count:
The Help America Vote Act and
the Future of Democracy in New York
with the assistance of
Will Boothby and Brad Usher
Anyone who has ever voted in New York City knows how critical it is that we reform our electoral process. Ancient, malfunctioning machines, poorly trained workers, and disorganized polling places are the rule. In the months ahead, New York State will have the opportunity to use federal money to remedy many of these problems. However, if the state handles this issue in typical fashion, this opportunity will be squandered. This report outlines the resources that are available, and makes recommendations as to the steps New York State should take to insure we develop the best election system possible. Our society rests on the faith we have in the fairness of our democratic process, and we must not betray that faith.
Last October, President Bush signed into law the Help America Vote Act (HAVA), a bill conceived in the wake of the Bush-Gore fiasco in Florida. HAVA requires all 50 states to upgrade many aspects of their election procedures, including voting machines, registration processes and poll worker training. In order to facilitate these changes, the law allocates roughly $3.9 billion in direct aid to the states, with New York eligible to receive as much as $235 million. There is, however, a catch. HAVA describes most of its supposed “upgrades” in the most general of terms and intentionally leaves the specifics up to each state. As a result, depending on how a state implements various requirements, one of two things will happen: either progressive reforms will extend the franchise to currently disenfranchised voters or regressive policies will erode the voting rights of certain citizens even further.
So far, we have not been given much cause to believe that New York is headed in the direction of progressive reform. If his actions to date are any indication, Governor Pataki has decided to stifle opportunities for progressive action by making the implementation process as autocratic and opaque as possible.
In New York State
In New York City
Voters in 2002 Gubernatorial Election
Voters in 2000 Presidential Election
Estimated Unregistered Adults Eligible to Vote
Source: New York City and State Board of Elections, Elections Nexus( http://elections.gmu.edu)
As required by HAVA, New York formed a task force to draft its State Implementation Plan (SIP)—a document that is supposed to serve as a blueprint for the specific policies and practices a state will implement in order to comply with the law. New York’s final SIP, provided to the United States Department of Justice in August as required by HAVA, serves no such purpose. Instead, the plan carefully avoids taking a position on controversial issues and often paraphrases the language of HAVA without further elaboration. This unfortunate result is not altogether surprising if one considers the process through which the plan was conceived. Last fall, soon after HAVA was signed into law, the Board of Elections formed a broad and diverse task force that reached out to community groups and private citizens for their input. By January, Governor Pataki responded by firing the task force chair (a nationally recognized election expert) and stacking the 19-member group with at least a dozen of his supporters. In so doing, the Governor essentially turned the task force into little more than a rubber stamp for his own authority. At a public hearing on July 10, members of the task force—the same people who ostensibly helped write the plan—complained that they had been entirely excluded from the decision-making process. As a result, the true authors of New York’s Implementation Plan were Board of Election officials working under the supervision of Task Force Chair Peter Kosinski, not task force members acting in the deliberative and collaborative fashion envisioned by HAVA.
The failure of the task force to take discernible positions on many key issues effectively eliminates the public from the decision-making process and leaves substantive decisions to be made through back-room political deals. Unless the Legislature takes action, the Governor will essentially be allowed to make up his own rules for HAVA implementation—at a great cost to the reliability and fairness of this state’s elections.
What needs to be done? The Senate has passed a bare-bones implementation bill (S 5686) that fails to address many of the most important HAVA-related issues. The Assembly, meanwhile, has passed a far more comprehensive package, so the two chambers will have to reach some sort of compromise. In order to ensure that any final compromise is as fair and democratic as possible, the general public, the media, and legislators alike must be aware of the important issues at stake.
To that end, this report examines the State Implementation Plan proposed by the Board of Elections. The report highlights various shortcomings of the current SIP and makes certain policy recommendations that, if incorporated into the final draft of the plan or enacted as legislation, would do much to ensure that our election system meets the needs of all New Yorkers. Finally, the report discusses opportunities for legislative action in the fall session. An appendix outlines what HAVA provides to and requires of all states.
New York’s State Implementation Plan is essentially a restatement of HAVA, with very little in the way of specific proposals for implementation. On many important issues, the plan is general to the point of irrelevance; for instance, the plan’s last word on voting systems is that “new election day voting systems [will be] HAVA-compliant.” That they will be, by federal law, but the plan gives us no further insight into which voting system is likely to be implemented. The net result of such ambiguity is that many of the most significant implementation choices will be made through backroom political deals. Surely that is not what the framers of HAVA had in mind when they stipulated that implementation process must include citizen participation and public input.
In addition, the plan does not take advantage of many opportunities that exist under HAVA to improve the reliability and fairness of our election system. For instance, opportunities under HAVA to receive federal funding for language accessibility measures that extend beyond minimum federal requirements have largely been overlooked—again, without explanation. Some areas of particular concern:
Perhaps the most significant decision that will be made in implementing HAVA is selecting new voting machine technology, as this decision will determine how every vote is cast for generations to come. Particularly given the serious reliability questions that have been raised about new voting technologies, we should expect the State Implementation Plan would provide details about the selection process for machines. Yet the SIP says nothing about the criteria according to which prospective voting systems will be judged and contains no discussion of the process through which competing offers will be considered. This does little to reassure those who worry that the selection process will be driven by partisan lobbying and favoritism rather than a straightforward evaluation of the quality, features, and cost of the machines and software under consideration. In response to these concerns, the Assembly recently passed the Voting Systems Standard Act of 2003 (A 8847), a comprehensive bill meant to ensure that New York gets the best voting technology for the best price. The bill would: appoint an independent advisory panel to review and recommend appropriate voting machine specifications for New York State; specify certain minimum requirements that all voting machines must fulfill, including specific features that make voting equipment fully accessible to disabled and limited-English proficient voters; and, last, require that a single voting system, selected through a competitive bidding process that includes meaningful opportunities for public comment, must be used statewide. The SIP should adopt these proposals even in the absence of signed legislation.
Perhaps the most widely held concern about new voting systems involves the issue of a voter-verified paper trail. HAVA stipulates that all voting machines (which must be electronic by 2006 at the latest) must leave a paper trail, but it does not specify whether or not this trail must be voter-verified, i.e. whether or not a voter must confirm that the paper printout from a voting machine is consistent with the vote that he or she intended to cast. Although a new federal law proposing such a requirement has been introduced in the House, so far states have been left to decide the matter for themselves. In this state and others, the issue has emerged as a subject of widespread concern, so one might reasonably expect the plan to take a position. Instead, it states only that all new voting systems will be “HAVA compliant” and ignores the subject entirely. This is an unacceptable evasion. Scores of computer scientists and election experts from around the country have all signed an online petition in support of a voter-verified trail. According to these petitioners—who count among their ranks some of the nation’s top computer experts—electronic systems are inherently vulnerable to being corrupted in ways that are nearly impossible to detect. Without a voter-verified trail, there is simply no reliable way to check electronic results. The SIP must heed the warnings of these experts; it should recommend to the Legislature that all new voting systems must leave a voter-verified paper trail.
A final issue of importance with regard to voting systems is New York’s archaic full-face ballot requirement, which forbids the use of voting machines that do not display every election and candidate simultaneously. This format makes it difficult or even impossible for many language minorities and people with disabilities to vote, and its visual complexity can be confusing for any voter. Although some fair-minded people stand by full-face ballots, I would argue that their usefulness should be determined empirically, not through an a priori judgment that automatically limits the number of machines that the Board can consider. If an independent advisory panel determines that full-face machines are the best, so be it, but the requirement itself should be abolished.
This is a particularly contentious issue, so some further elaboration may be necessary. Those who support the full-face requirement advance two main arguments: one, that voters may not “scan” the full ballot to vote for “down ballot” candidates (i.e. they will vote for the Presidential race and other federal offices, but not for judges or other local officials); two, that voting machines that display each race separately and consecutively—systems that are, by all accounts, the most user friendly—will increase the amount of time each voter spends voting, thereby increasing lines at polling sites and dissuading voters from coming to the polls, unless additional equipment is purchased to reduce waiting time. It is my conviction that each of these objections can be dismissed fairly conclusively. As far as the first objection is concerned, anybody with a bare minimum of programming experience will tell you that an electronic machine can easily be configured in such a way that a voter must review every screen (i.e. every race) before the machine will record any of his or her votes. As for the second objection, it is important to keep in mind that New York’s full-face ballot requirement is a highly unusual one; as a result, the number of vendors who make machines that comply with this requirement is only a fraction of the number that produce more common systems, such as the more popular Direct Recording Electronic (DRE) machines. As basic economic theory tells us, less competition is bound to drive prices up. Even if DRE machines cause voters to spend more time at the polls (a claim that has yet to be proven) and, as a result, the State Board will have to purchase more machines to reduce lines at the polls, it is probable that, even considering the cost of additional equipment, DRE machines will still be cheaper. In addition, it is federal, not state, money that will be spent, so these expenditures will not come at a cost to any other state programs.
The implementation plan explains: “Accessibility, whether a physical disability or a language barrier, is addressed in state law and is largely maintained under the current efforts of the State Board and county election officials. However, given the intent of HAVA to further enhance accessibility, the state will engage in statewide efforts to ensure accessibility to voting systems and all procedures directly connected to the election process.”
Hardly the words of an organization committed to reform. In addition to suggesting that there is no real reason for further accessibility measures, the plan includes no mention of how the Board of Elections will go about implementing the federally mandated requirements. This despite the fact that in recent elections mandatory language assistance has suffered from the following deficiencies:
o Poll sites with too few interpreters or interpreters who spoke the wrong language.
o Mistranslated election materials, including, in one instance, ballots with flipped Chinese translations of the party headings.
o Poll workers who did not provide voters with translated materials or allow them to receive oral interpretation.
In the face of such glaring past irregularities, the state must explain the measures it will undertake—both in policy and in practice—to ensure greater accessibility for non-native speakers. A perpetuation of the status quo simply will not do.
In addition, although HAVA makes no changes to existing federal language assistance requirements, it does provide increased funding for election improvements that improve accessibility, including accessibility for “individuals with limited proficiency in the English language.” Will New York take advantage of this potential source of funds? Will it extend language assistance to the largely disenfranchised Bengali, Urdu, Russian, and Haitian/Creole populations in New York City? Will it provide assistance for Spanish-speaking voters in certain counties in upstate New York? It does not seem so, because the implementation plan includes no mention of expanding language assistance beyond the federally mandated minimum standards. This is unacceptable. New York State, and New York City in particular, contains some of the most populous foreign language communities in the country; if any state is in need of expanding language assistance beyond the minimum requirements, surely New York is one of them.
Similarly, although the State Plan briefly mentions the Board’s intentions to expand the accessibility of voting systems for voters with disabilities, it lacks the specifics necessary to ensure meaningful reform. For one, the plan ignores the opportunities for increased federal funding that would arise if accessibility were improved beyond minimum standards. This is unfortunate, particularly in light of the fact that, in the past, New York has had difficulty meeting even these minimum requirements. On July 10, at a public hearing held by the state task force, a private citizen with a severe disability, testified that she went to five different polling sites in New York during the past election. Of the five sites, only two were compliant with the Americans with Disability Act and, at all five polling sites, poll workers demonstrated an appalling lack of understanding when confronted with the basic needs and rights of disabled voters.
In the context of voting systems, the SIP needs to list in greater detail the types of “accessible devices” and other alterations to existing voting systems that the State Board will require to improve accessibility. For instance, recent legislation passed by the Assembly would require each polling site to have at least one voting machine with an audio prompt voting feature, hand held voting and sip-and-puff mechanism (see A 8847). The SIP should specify what measures it will take to ensure people with disabilities have the ability to cast private votes. Furthermore, the SIP should mention what role, if any, representatives of the disabled committee will play in selecting, reviewing, testing, and commenting on voting technology prior to their final implementation.
The plan explains that the Board, in compliance with HAVA, will adopt a computerized state voter list in accordance with “industry standards and best practices for information management and security.” Yet it offers no further explanation of what these standards and practices are. If they are so accepted, then surely they can and should be described—even briefly—in the draft proposal. Further, HAVA stipulates that states must develop “safeguards to ensure that eligible voters are not removed in error from the official list of eligible voters,” yet the state plan includes no mention of how this requirement will be implemented in New York. How will the Board of Elections handle registration forms that contain errors? Will they notify the applicant of the problem or will they simply fail to register an otherwise eligible voter? What sort of guidelines will county boards be required to follow as they interact with the State database? Will the Board notify voters when they have been removed from the State list? The State plan includes no mention of how the State will handle these important issues and provides the Legislature with no relevant guidance.
The final SIP should include sufficiently clear statewide standards for county election officials to follow as they interact with the statewide list. Such standards will protect against non-uniform treatment of voter registration applications or inconsistent list maintenance procedures. In addition, the SIP should include specific guidance to county boards of elections to ensure that—as required by HAVA—voters are not purged from the statewide list without notice and opportunity to correct their registration information. Last, the SIP must designate a broad and specific network of state databases that the State Board will access in order to verify a registrant’s identity and eligibility to vote.
HAVA requires all polling places to post certain information on election day, including but not limited to a sample ballot, instructions on how to cast a provisional ballot, polling place hours, general information on voting rights under state and federal laws, and instructions for first-time voters who registered to vote by mail. The SIP explains that, in order to comply with this requirement, the Board will develop a Voter’s Bill of Rights—a welcome move to ensure that voters are being adequately informed of their rights. However, the plan fails to discuss what rights will be included in this important document. In addition, the plan fails to provide for a public review of the document before it is finalized.
A 8840, signed into law by the Governor in July, is a strong step in the right direction, but it, too, leaves many of the specifics up to the Board. If it is truly interested in developing a document that reflects the needs of all New Yorkers, the Board should develop a draft proposal of a Bill of Rights and place it on the web for public review.
HAVA provides that voters who feel they are eligible to vote, but who are not cleared to vote by an election official, may cast a provisional vote, which will be counted according to procedures set by the state. Although New York is already has a system of provisional voting (known as affidavit balloting) in place, the HAVA implementation process offers a welcome opportunity to improve New York’s system. Current state law governing the counting of provisional votes is impossibly stringent: provisional votes are only counted if voters are at their exact polling sites and election districts and if there are no stray marks on the envelope.
The final SIP should recommend to the Legislature that these burdensome requirements be removed. These standards wrongly disenfranchise many eligible voters simply because they are voting at the wrong polling site or election district (the so-called “right church, wrong pulpit” problem). In so doing, they impose an unnecessary double standard on provisional voters—many of whom are immigrants or first-time voters unfamiliar with the administrative procedures governing elections.
Further, New York should join several other states in stipulating that provisional ballots cast by voters who are not currently registered should be processed as voter registration applications. This measure would reduce unnecessary paperwork for both the Board and the voter and ensure that more eligible voters are given the opportunity to vote.
HAVA holds first-time voters who register by mail to new identification requirements. The SIP, however, mentions ID requirements for first-time voters without specifying that such requirements apply only to first-time voters who register by mail. Such a clarification is necessary. Voter registration drives that collect applications from new voters in person and then deliver these applications to election officials by hand or even by mail should not be subject to these requirements under HAVA. The Board should clarify this point, in recognition of the disproportionate effect that applying ID requirements more strictly than necessary will have on urban voters, particularly recent immigrants. (Many urban voters lack traditional forms of identification; in New York City, for instance, only 53% of those 18 and over possess a driver’s license, while outside of the city that figure jumps to 93% of those 18 and over.)
Even more importantly, the SIP should include a clear, inclusive list of acceptable forms of identification for county election officials to adopt. Such a list is necessary in order to ensure that the new ID requirement is applied in a uniform and nondiscriminatory manner. (For an example of the type of list that should be embraced by the SIP, please see A 8842, passed by the Assembly in June.)
The SIP also fails to address a problem that has long been a significant obstacle to fair elections in New York: improperly trained election workers. The plan makes no mention of testing requirements for election workers or other quality control measures to ensure that poll workers are doing their jobs properly. Testing will be particularly important as electronic systems replace more traditional machines; election workers should have to demonstrate their proficiency with new voting systems and procedures before Election Day. A closed-book examination of the type envisioned by A 8833 would be a good first step toward improving poll worker performance. This bill would expand poll worker training and require all poll workers to pass an annual test. The SIP should adopt these measures regardless of whether the Senate and Governor make it law.
In addition, the plan should include provisions to ensure that language interpreters are adequately trained; county boards should be given clear guidelines to follow as they provide language assistance.
· Enforcement of Accessibility Standards
Private citizens and advocacy groups have long complained that polling sites across the state often fail to comply with the Voting Rights Act and other laws establishing minimum poll-site accessibility standards. In recent elections limited-English proficient voters have had to contend with mistranslated ballots, poll sites with too few interpreters or interpreters who spoke the wrong language, and officials who simply refused to provide translated materials, as required by law. Similarly, disabled voters have reported that many polling sites have dangerously steep ramps, impossibly heavy doors, and other features that make voting difficult or even impossible. The unfortunate gap between election policy and practice in this state is largely a result of the fact that the Board has not developed effective quality control measures. Rather than conducting its own inspections of polling sites, the Board currently monitors accessibility compliance by asking each county board to hand over the results of inspections conducted by local cities and towns. This kind of self-reporting is simply not effective. Under New York election law, the State Board has broad powers and responsibilities to enforce election laws at the county level. These opportunities and responsibilities are largely being ignored. The final SIP should recommend that the Board monitor elections more directly and develop a uniform procedure for policing accessibility standards and addressing complaints.
The following is a summary of the issues that any final legislative action should address:
Although time will tell what changes, if any, will be incorporated into the final State Implementation Plan, given the task force’s actions to date, it does not seem probable that it will have assimilated more than a drop of the recommendations proposed by this report and other, similar reports prepared by good government and public interest groups. Instead, it seems likely that the responsible implementation of HAVA in New York State will only come about through some combination of legislative action and a concerted effort to raise public awareness about some of the more egregious problems with the current process. In particular, the ties between politicians and the manufacturers of various voting systems equipment should be monitored closely—especially if the selection process continues to occur in such an undemocratic fashion. Furthermore, close attention must be paid to any potential compromise reached between the Assembly and the Senate; given the ambiguity of HAVA itself, the devil will most certainly be in the details. A general guarantee that such and such will do so and so is simply not adequate. Reforms must be provided for explicitly, not alluded to generally.
Those of us concerned with the fairness and reliability of our election system face an uphill battle, as Governor Pataki and Majority Leader Bruno are likely to oppose our efforts to achieve progressive reform, but it is worth the fight. We must not permit our state’s election system to be compromised with cronyism and partisan maneuvering. The future of democracy in this state is too important not to fight for!
Appendix: The Terms of HAVA
The act authorizes the following grants to states:
· $325 million, upon a Governor's application, to implement election administration improvements;
· $325 million upon state certification that the money will be used to replace existing punch card and lever voting systems;
· $3 billion over three years in election "requirements payments" to implement federal election standards under the act; and
· $100 million over three years to states and localities to ensure access to polling places for the disabled.
While requiring that states meet the following requirements:
· Comply with various federal standards, enact provisional voting requirements, and establish a computerized statewide voter registration database;
· Implement anti-fraud and voter identification requirements; and
· Establish state-based administrative complaint procedures outlined under the act.
Description of Grant Programs
Election Administration Grants ($325 million)
The Administrator of General Services is authorized to make payments to states to implement election administration requirements under the act. The Governor of each state must notify the administrator within six months of the act’s enactment that the state will use the funds to comply with federal election standards and requirements. The Governor may then use the funds as provided under the act.
Punch Card and Lever Election Equipment Grants
The Administrator of General Services is also authorized to make these payments. Each state must certify to the administrator within six months of the act’s enactment that the state will use the funds to replace punch card and lever voting machines by the November 2004 general elections. A state may receive a waiver to January 1, 2006.
Election Assistance Grants (Requirements Payments) ($3 billion)
These grants are administered by the Election Assistance Commission, which is created under the act. To receive funding, the Governor must certify that, among other things, the state has submitted an election reform plan and a plan for state-based complaint procedures, and that the state has appropriated a 5 percent match in federal funds. No time limit is provided, except that the certification cannot be filed until the state election reform plan has been published in the Federal Register for 45 days.
State and Local Grants for the Disabled ($100 million)
The U.S. Secretary of Health and Human Services is authorized to administer grants to both state and local governments to increase accessibility to polling places for the disabled. Each state must submit an application to the secretary describing the activities planned and any other information required by the secretary. No time limit is provided.
Description of Federal Requirements and Standards
Mandatory Federal Voting Systems Standards
The act requires states to meet federal voting system standards by January 1, 2006, including permitting voters to change or correct ballots; notifying a voter if his or her ballot selects more than one candidate for a single office; providing manual audit capacity; providing access to the disabled; providing alternative language accessibility; and defining what constitutes a vote.
Provisional Voting Requirements
States must enact, by January 1, 2004, provisional voting laws in accordance with the act. Requirements include providing notice to a provisional voter through a free access system (toll free telephone or Internet) that the ballot was or was not counted, and, if not, why the ballot was not counted.
Significantly, however, HAVA allows each state, through state law, to determine procedures according to which provisional votes will be counted. Under current New York law, provisional votes are counted only if voters are at their exact polling sites and election districts and if there are no stray marks on their envelope. HAVA will have no effect on such preexisting laws.
Computerized Statewide Voter Registration List Requirements
The Secretary of State of each state must establish a single, uniform, computerized statewide voter registration list. The list must assign a unique identifier to each voter and be the single system for storing the list of registered voters in the state. The list must be established by January 1, 2004. A state may receive a waiver to January 1, 2006.
Anti-Fraud and Voter Identification Procedures
By January 1, 2004, states must require individuals registering to vote to provide a driver’s license or the last four digits of their social security number. If an applicant for voter registration has not been issued a current and valid driver’s license or a social security number, the State must assign the applicant a unique identification number for voter registration purposes. Beyond these guidelines, however, HAVA does not specify what standards a state should apply when evaluating a registration form. By default, the State is left to determine which forms of identification—if any—are required for first-time voters.
For first-time voters registering by mail, however, HAVA is more explicit. Such voters must present either “current and valid photo identification” or a “copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows his or her name and address.”
Whether or not a state receives federal funds, the U.S. Attorney General is authorized to bring civil action against states failing to meet federal requirements. However, given the political views of the current Attorney General, there is significant concern that HAVA will be enforced selectively in ways that discourage, rather than encourage political participation.