Help America Vote Act: Key Provisions and Criticism

The Help America Vote Act of 2002 (HAVA) is a United States federal law that has made major changes to the way the nation votes. Signed into law by President George W. Bush on October 29, 2002, the HAVA was passed by Congress to address problems within voting systems and voter access that resulted in the miscounting of at least hundreds of ballots in the controversial 2000 U.S. presidential election. 

Under Article I, Section 4 of the U.S. Constitution, the individual state legislatures are responsible for conducting and overseeing federal elections. While several Constitutional amendments and federal laws protect Americans’ right to vote, the states alone are granted the power to determine how federal elections—congressional and presidential—are conducted.

Help America Vote Act Definition

The HAVA requires the states to develop and meet minimum standards in key areas of their election procedures, including voting machines, equal access to polling places, voter registration procedures, and training of poll workers and election officials. The specifics of how the HAVA is implemented is left up to each state, allowing for varying interpretations of the federal law.

The HAVA also established the Election Assistance Commission (EAC) to advise the states in complying with the law. HAVA provides federal funds to help the states meet these new standards, replace voting systems, and improve election administration. To be eligible to receive funding, each state is required to submit an HAVA implementation plan to the EAC.

HAVA requires that the states and local governments implement the following election programs and procedures:

Polling Place Accessibility

All aspects of all polling places, including the path of travel, entrances, exits, and voting areas, must be accessible to individuals with disabilities, including the blind and visually impaired, in a manner that provides the same opportunity for voting— including privacy and independence—as for other voters. At least one voting device at each polling place must be accessible to individuals with disabilities. In addition, election officials, poll workers, and election volunteers must be trained on how to best assist disabled voters.

Voting Machine Standards

States must replace all punch card or lever-activated voting machines with voting systems that:

• Allow the voter to verify the accuracy of all votes selected on the ballot before the ballot is cast and counted.
• Provide voters the opportunity to change their ballot or correct any error before the ballot is cast and counted.
• Notify the voter of “overvotes” (votes for more than the maximum number of selections allowed in a contest) and provide the voter a chance to correct these errors before the ballot is cast and counted.

States must ensure that all voter interactions with voting systems can be conducted in a private and independent manner. In addition, the states are responsible for certifying the accuracy of their voting systems.

HAVA also requires that all voting systems be auditable and able to produce a permanent, official paper record of votes cast for use in the event of a recount.

Statewide Computerized Voter Registration

Each state is required to develop and maintain an official interactive and computerized statewide voter registration list. HAVA also requires the states to continually maintain their statewide voter registration lists, including deleting ineligible voters and duplicate names as required by the National Voter Registration Act of 1993—the so-called “Motor Voter Act.” 

Provisional Voting

The HAVA requires that voters not found on the statewide voter registration, but who believe that they are eligible to vote, be allowed to cast a provisional ballot. After the election, state or local election officials are to verify the voter’s eligibility. If the voter is found to have been eligible, the vote is to be counted and the voter is to be informed of the outcome. In the 2004 presidential election, approximately 1.2 million provisional ballots were approved and counted. In addition, voters who do not comply with HAVA's voter identification requirements must be allowed to cast a provisional ballot.

Voter Identification

Under HAVA, voters who register online or by mail—and have not previously voted in a federal election—are required to show current and valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows their name and current address when voting. Voters who submitted any of these forms of identification during registration, as well as voters entitled to vote by absentee ballot under the Uniformed and Overseas Citizens Absentee Voting Act, are exempt.

US Election Assistance Commission

Created by the HAVA, the Election Assistance Commission (EAC) is an independent agency of the United States government. The EAC is responsible for:

• Holding regular hearings to gather information on the voting process.
• Serving as a nationwide clearinghouse for election administration information.
• Creating a program for the testing and certification of voting systems.
• Providing guidance to states in complying with the HAVA.
• Approving and administering HAVA grants to the states.

The EAC is composed of four commissioners—two Democrats and two Republicans—appointed by the president, subject to the advice and consent of the Senate. HAVA requires that all commissioners have experience or expertise in election administration.

Criticism of the Help America Vote Act

Voting rights advocates, concerned citizens, as well as some lawmakers and election officials have criticized the HAVA. These criticisms have focused on the vague nature of the act and its failure to provide specific instruction to states on what changes need to be implemented to improve voting accessibility. Some scholars believe that the HAVA has been ineffective in improving election infrastructures because it failed to set standards for voting technology, registration requirements, and discrimination prevention and mandate state compliance with these.

Potential for Discrimination

Critics say the HAVA gives the states too much latitude in how they meet the law's minimum requirements, offering them the opportunity to apply vague or idiosyncratic requirements that could pose confusing and potentially discriminatory barriers to voting. 

For example, in 2018, Florida voters passed a binding ballot initiative measure requiring an amendment to the state constitution that would restore the right to vote to formerly incarcerated people with nonviolent felony convictions. However, in implementing the new law, the state legislature passed a bill requiring that to be allowed to vote, people with felony convictions must pay off all court fines, fees, and restitution related to their sentence and parole or probation, as well as all medical debts incurred while in prison.

Voting rights advocates called Florida’s debt-paying requirement a modern “poll tax,” a now-unconstitutional fee charged at the polls in the South to prevent poor Black people from voting during the Jim Crow era.

Voter ID Requirements

The HAVA requirement of photo identification for first-time federal voters has been called an unnecessary complication in the registration process. Critics point to a five-year U.S. Justice Department investigation ordered by President George W. Bush, which found virtually no evidence of any organized effort to commit voter fraud or voter registration fraud in the 2002 or 2004 federal elections. According to the nonpartisan Minnesota Council of Foundations, only 26 people were convicted or pleaded guilty to illegal voting or registration, and of the 197,056,035 votes cast in the two elections, just 0.00000132% were cast fraudulently. 

Improper Use of Federal Funds

The law has also been questioned for the fact that a large portion of federal funding granted to the states for HAVA implementation was spent replacing paper voting machines (punch-and-lever) with electronic ones. Of the $650 million that HAVA distributed to the states for voting improvements, half was used to replace machines. Now, the security and functionality of electronic voting machines have been called into question and many experts believe that this voting technology could be even more susceptible to failure and invalid ballots. In addition, the machines purchased outright (rather than leased as some scholars have suggested would have been the more cost-effective approach) are becoming outdated and the funds from this act are not sufficient to replace them again.

Additional References

• Leary, Marie, and Reagan, Robert Timothy (2012). “.”The Help America Vote Act Federal Judicial Center.
• Ludwig, Mike. “.”Modern-Day ‘Poll Taxes’ Disenfranchise Millions of Low-Income Voters TruthOut. (July 25, 2019). 
• Lipton, Eric; Ian Urbina (April 12, 2007). “.”In 5-Year Effort, Scant Evidence of Voter Fraud New York Times.
• Bali, Valentina and Silver, Brian D. “,"Politics, Race, and American State Electoral Reforms after Election 2000 State Politics and Policy Quarterly 5 (Spring 2006). 
• Tanner, Robert (February 8, 2005). “.”States struggle with election reform Boston Globe.
• Ackerman, Elise (May 15, 2004). “.”Blind Voters Rip E-Machines San Jose Mercury News.