By: Tara Schonhoff
Following the chaos of the 2000 elections (uncounted ballots; dangling, dimpled, and pregnant chads; and the Supreme Court choosing the President in Bush v. Gore), Congress passed the Help America Vote Act (HAVA) of 2002 to create some standards and support for state election administrators. HAVA provided funds to states to replace outdated voting machines, it created minimum standards for states to follow, and it created a new federal agency to serve as a clearinghouse for election administration – the Election Assistance Commission (EAC).
The EAC is designed to have two Republican commissioners and two Democrats. Its small size, Silver Spring office, and employees with hands-on experience in election administration evidence the agency was designed to be a pragmatic, less flamboyant tool for furthering election quality.
HAVA’s creation of the EAC fashioned a bipartisan resource of election practices for the states that was unique: aiding each state’s unique election needs through best practices. Congress overwhelmingly passed HAVA with a vote of 362 to 63 in the House, and 92 to 2 in the Senate (only Senators Clinton and Schumer, the current chair of Senate Rules and Administration, voted against it). Unfortunately, only a few years after its creation, the agency quickly lost its commissioners and, thus, its power. By 2011, the EAC’s four commissioner spots were all vacant, and the agency has not been fully staffed since. Left powerless, the EAC has not held a public meeting since 2011 and has stalled Kobach v. EAC in the 10th Circuit Court of Appeals, debating states’ permission to alter voter registration forms. At that time, the House attempted to abolish the EAC altogether. Although that proposal failed, opposition to the agency continues with this year’s House budget proposal attempting to defund the EAC.
President Obama nominated two Democrat commissioners last summer and two Republican commissioners this summer. After returning from this August’s recess, the Senate Rules and Administration Committee finally started to focus on restocking the agency’s commissioners. Disappointingly, this month they failed to reach a quorum following September’s hearing on the Republican nominees, postponing a vote on commissioners yet again. Additionally, after waiting more than three years for a vote on her nomination, Myrna Perez withdrew her name.
Election lawyers predict that especially less experienced partisan nominees may continue to stall EAC progress. The Democrat’s choice of Matthew Butler is particularly unlikely to be confirmed if a vote is held after the Republicans take control of the Senate in January. This choice has already discouraged election lawyers and Democrats who see such partisan picks as another move towards the EAC slipping into gridlock.
The war against the EAC is a microcosm of a national voting war: those fearful of voters losing access or votes going uncounted versus those who fear election fraud and voter impersonation. If commissioners were finally appointed and the EAC remain fully funded, it could be a useful tool for those on both sides of this war.
Concern over voter impersonation has drastically increased the number of states with voter ID laws. In contrast, these laws have received backlash as suppressing votes, even at the Supreme Court level, calling these qualifications “modern poll taxes.” With the EAC’s authority to set minimal state standards for election administrators and serve as a clearinghouse for states to share successful practices, it could preclude the need for voter IDs or at least help maintain voter access to the polls when these laws are implemented.
Paper ballots lost credibility with the 2000 elections, leading many to switch to electronic equipment. But with voting technology changing drastically between election cycles, states need the EAC’s guidance. The EAC is a solution to this problem with its ability to certify voting machines in a market that is often questioned, and its dispersion of state funding for updated voting systems.
EAC nominee Thomas Hicks’ expertise as Senior Elections Counsel on the House Committee on Administration and would-be commissioner Christy McCormick’s time coordinating elections in Iraq and litigating at the DOJ Voting Section are two additional reasons why the Senate should act quickly to finish the nomination process and get the EAC up and running.
Florida’s 2000 ballot fiasco may be forgotten, but a repeat of this disaster is all too possible. The time is ripe for the EAC to staff up and set state standards before the 2016 Presidential election.
Voids left by the Federal Election Commission (FEC)’s partisan gridlock and the Voting Section of the DOJ’s inability to enforce portions of the Voting Rights Act (VRA) following Shelby County v. Holder make the EAC even more important as a voice of consistency in national elections.
