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

Article Excerpt
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.

I. 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...