Some California
counties have interpreted the Help America Vote Act’s requirements to the
effect that: as of January 1, 2007, every single piece of equipment to be
purchased would have to be accessible. In some cases it has been interpreted that
such a requirement would necessitate the exclusive use of direct recording
electronic (DRE) voting machines, effectively precluding obtaining equipment
for a paper optical scan ballot system or for a blended voting system (e.g.
DREs for disabled and language accessibility, and paper optical scan ballots).
In at least one case, this interpretation appears to set specific limitations
on the type of voting system the county should obtain at this time as well as into the future. The Help America Vote Act
(HAVA) has several pertinent sections which appear to refute that
interpretation.
The Verified Voting Foundation’s research indicates
that prior to January 1, 2007, HAVA permits the acquisition of an ACCESSIBLE
optical scan voting system (i.e., one that includes accessible ballot-marking
devices for each polling place, or that includes accessible DREs for each
polling place, as in a blended system) regardless of the source of funds used
to acquire such a system—including HAVA Title II funds.
On or after January 1, 2007, HAVA continues to permit the
acquisition and use of such ACCESSIBLE optical scan voting systems so long as
HAVA Title II funds are used only for the purchase of the accessible components
(i.e., accessible ballot marking devices or accessible DREs, as in a blended
system) of such systems. Even after January 1, 2007, HAVA clearly continues to
permit the acquisition and use of optical ballot scanners (which by themselves
are not accessible), so long as HAVA Title II funds are not used for purchases
of such scanners.
Thus, after January 1, 2007, jurisdictions can continue to acquire and
use optical ballot scanners using county or state funds (e.g., California
Proposition 41 Voting Modernization Funds) or any non-Title II HAVA funds, and
they can continue to buy and use accessible optical scan components (e.g.,
accessible ballot marking devices) regardless of the source of funds.
Whether or not HAVA permits the acquisition of a scanner,
after January 1, 2007, with HAVA funds, when that scanner is to be used in
conjunction with other elements of a fully accessible system, would have to be
ascertained. HAVA does clearly permit the acquisition of accessible devices
which stand alone in their accessibility, and that includes ballot-marking
devices, not just DREs, as has been implied by some California county officials.
A number of other states and even other counties within California have selected
paper optical scan ballots as their primary voting system. This system has its
own intrinsic paper manual audit trail (this capability is required by HAVA),
and can be made to meet HAVA’s accessibility standard by the addition of
accessible devices to assist voters in marking their paper ballots
independently and privately. Such a system would thus meet the accessibility standards.
A few jurisdictions have opted to use a blended system, e.g.
paper optical scan ballots as the primary system supplemented by direct
recording electronic (DRE) voting machines in order to meet HAVA’s standard on
accessibility. Such a system, while more complex and thus more cumbersome for
election officials and pollworkers to administer, would still meet the accessibility
standards described in HAVA.
Many states using optical scan choose ballot-marking devices
(one example is the Automark) to fulfill
accessibility standards. These devices do not tabulate, but instead assist the
voter to mark a paper ballot through the use of an assistive interface, similar
to those found on some DREs. The paper ballot produced through this process can
be reviewed by the voter through both visual and non-visual means, and is then
scanned and tabulated with the other paper optical scan ballots.
The states using an accessible optical scan voting system include
Nebraska, North & South Dakota, North Carolina, Idaho, Wyoming (three
counties have opscan with DREs, but 20 have opscan with ballot-markers), and Rhode
Island. Other locations include parts of Illinois,
Alabama, Iowa,
Texas ... and of course there are other California counties which will be using optical scan with
ballot-markers, such as Sacramento
County. States like Massachusetts will be
using optical scan with either ballot-markers or DREs for accessibility. (This
list of states using such systems is not comprehensive.) Nationwide, optical
scan will be used in more than half
the counties in the country this year.
The Help America Vote Act does not tell the counties what
kind of voting systems they must buy, nor does it generally prevent or prohibit certain types of systems, so long as
those systems meet the stated standards included in the Act. HAVA requires a
minimum of one accessible voting system per polling place, regardless of the
source of funds for the purchase or lease of that system. It also requires that
every system be capable of printing a manual audit trail.
Nothing in HAVA prevents the county from obtaining or using
an optical scan voting system, as long as that system has been made accessible
by the addition of at least one accessible system per polling place. HAVA’s
language explicitly provides for the retention of paper ballot systems, as long
as this requirement is met.
No HAVA funds have been allocated for additional equipment
purchases into 2007. HAVA funds were approved for three years – 2003, 2004 and
2005. It is possible such additional funding will be provided, but there is no
way to know at this time. In our view it is unlikely (and if any county has
heard otherwise, we are most interested in reviewing any documentation).
Title I equipment funding was provided for replacing
punch-cards/levers. Title II equipment funding provided for jurisdictions to
meet all the requirements of HAVA §301,
including the deployment of accessible voting systems in every polling place.
The deadlines for compliance with Title I and II requirements have already
passed. The funding for obtaining the new equipment has already been disbursed
to states based on their published HAVA plans.
However, additional systems or supplements to existing systems
can be obtained through funds other than those allocated by HAVA, such as
county funds or state funds. Again, as long as the minimum HAVA standards have
been met (one accessible system per polling place, auditable paper trail and
either “second-chance” voting via over-vote protections, or a targeted voter
education campaign in those jurisdictions retaining central count systems), in
no section does HAVA prohibit the purchase or lease of voting systems with
other non-HAVA sources of funds.
The pertinent sections of HAVA follow, annotated and/or highlighted
for clarification.
Section 301(a)(3):
(3) Accessibility for individuals with disabilities.—The voting system
shall
(A) be accessible for individuals with disabilities, including
nonvisual accessibility for the blind and visually impaired, in a manner that
provides the same opportunity for access and participation (including privacy
and independence) as for other voters;
(B) satisfy the requirement of subparagraph (A) through the use
of at least one direct recording electronic voting system or other voting
system equipped for individuals with disabilities at each polling place; and
(C) if purchased with funds made
available under title II on or after January 1, 2007, meet the
voting system standards for disability access (as outlined in this paragraph).
[If purchased with
funds made available under Title II, which is the source for providing the
minimum one accessible voting system per polling place, then it should meet the
voting SYSTEM standards -- this might not necessarily mean a particular MACHINE
but rather a whole system -- see definitions, below. Absent an opinion from the Department of Justice on this matter, this
remains unclear. However, what is clear is that even on or after January 1, 2007:
a) HAVA title II funds (if available)
can be used to purchase accessible components (e.g., ballot marking devices) of
an accessible optical scan voting system, and, b) the other components of such
a system can continue to be purchased and used so long as they are purchased
using a funding source other than HAVA Title-II funds.]
Section 301 (b)
Voting System Defined.--In this section, the term ``voting system'' means--
1. the
total combination of mechanical, electromechanical, or electronic
equipment (including the software, firmware, and documentation required to
program, control, and support the equipment) that is used--
A.
to define ballots;
B.
to cast and count votes;
C.
to report or display election results; and
D.
to maintain and produce any audit trail information;
and
2. the practices and
associated documentation used--
A.
to identify system components and versions of such
components;
B.
to test the system during its development and
maintenance;
C.
to maintain records of system errors and defects;
D. to
determine specific system changes to be made to a system after the initial
qualification of the system; and
E. to
make available any materials to the voter (such as notices, instructions,
forms, or paper ballots).
Section 301 (c)
Construction.--
- In general.--Nothing in this section shall be
construed to prohibit a State or jurisdiction which used a particular type
of voting system in the elections for Federal office held in November 2000
from using the same type of system after the effective date of this section,
so long as the system meets or is modified to meet the requirements of
this section.
- Protection of paper ballot voting systems.--For
purposes of subsection (a)(1)(A)(i), the term ``verify'' may not be
defined in a manner that makes it impossible for a paper ballot voting
system to meet the requirements of such subsection or to be modified to
meet such requirements.
[Thus nothing can prevent a state or jurisdiction
(county) from using a specific type of system, including one which involves
paper ballots, as long as that system meets or can be "modified to meet”
the requirements of HAVA §301. To modify an optical scan system to
make it meet §301 accessibility
requirements for at least one accessible system per polling place, for example,
you would simply need to make available an accessible way to mark the paper
ballots... e.g. a ballot-marking device. In this context, accessibility would
also incorporate language access for persons who may have different language
abilities, as may be required in your county. An optical scan system inherently meets the
manual audit capacity requirement (301(a)(2)) and the second-chance
notification requirement (301(a)(1)) either via a precinct-count optical
scanner set for such notification or via a voter-education program.]
Section 102 (a) 2:
Use of funds.--A State shall use the funds provided under a payment under this
section (either directly or as reimbursement, including as reimbursement for
costs incurred on or after January 1, 2001, under multiyear contracts) to replace
punch card voting systems or lever voting systems (as the case may be) in
qualifying precincts within that State with a voting system (by purchase,
lease, or such other arrangement as may be appropriate) that--
- does not use punch cards or levers;
- is not inconsistent with the
requirements of the laws described in section 906; and
- meets the requirements of section 301.
[Even under Title 1,
the funding doesn't prohibit purchasing a paper-based optical scan voting system
-- as long as it is possible to make it meet the requirements of HAVA §301. So,
if your county previously had punch-cards or levers, it would be able to use
Title I money to buy optical scan, which comes with its own audit trail suitable
for the manual audit standard. The County also would have to “modify the system
to provide accessibility” e.g. through purchase or lease of one accessible
ballot-marker per polling place, by January 1, 2006.]
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