Help America Vote Act

CONTRARY TO PREVAILING practice around the world, elections for federal office in the United States are primarily administered by state and local governments and according to electoral rules and funding levels that vary by location. This patchwork system came under scrutiny when Florida's problems in election administration led to prolonged uncertainty about the outcome of the 2000 presidential election. Enactment of the Help America Vote Act of 2002 (HAVA) was Congress's bipartisan response to these events and to the public's sense of a broken election system.

The U.S. Constitution, Article 1, Section 4, makes election administration the default duty of the states, but it also grants Congress plenary power to regulate or displace the states in election administration. This provision addresses only congressional elections. As a practical matter, however, it is understood that a statute that nominally regulates only congressional elections may impact elections for all local, state, and federal offices, as administrators often seek the economies of scale that accrue from holding a single election for the various [Page 301]offices. Although Congress has used this authority many times in the past to impose mandates on the states, from requiring single-member congressional districts in 1842, to voter-registration legislation in 1993, it has always left most election administration to the states' discretion. The states, in turn, have often left it to localities.

In some ways, HAVA represents a bigger nationalizing step than Congress has taken before. For the first time ever, significant federal funds were appropriated to pay states for some of the direct costs of running federal elections. HAVA also created a new federal agency, the Election Assistance Commission (EAC). HAVA imposed some detailed mandates on the states, enforceable by the Department of Justice, regarding voter-registration databases and voter-identification for first-time voters who register by mail; provisional voting for voters whose eligibility is disputed; and technology standards, such as maximum-error rates, and disability and alternative-language accessibility. Moreover, HAVA increased federal influence through the conditions attached to its voluntary grants. These include the voting-system buy-out in which states received money to replace punch-card and lever technologies that had performed poorly in the 2000 election. HAVA also created of best practices guidelines and intergovernmental associations of elections specialists.

However, HAVA abjures the ideal of nationwide uniformity and, in fact, reinforces the states as the fundamental agents of governance for federal elections. Even its mandates are framed as minimum standards that are not intended to preempt stricter state laws and that deliberately leave many vagaries about particular methods of implementation to state discretion. In fact, HAVA's greatest centralizing effect is the enhancement of the states' involvement in election administration at the expense of local control.

In both the mandates and the voluntary-grants portions of the law, it is the states that are given primary responsibility. Many state officials quickly seized upon HAVA implementation as an opportunity to centralize. HAVA's deference to the states was key to the bill's passage into law. It not only satisfied influential state lobbyists, it also facilitated resolution of partisan disagreement between Democrats and Republicans that had threatened deadlock. Sharp party divisions in Congress over particular election procedures, above all the question of whether there should be a stricter voter-identification requirement, were effectively left to the states to resolve in their own partisan battles over HAVA implementation.

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