Standing Panel on the Federal System
Meetings

NATIONAL ACADEMY OF PUBLIC ADMINISTRATION
STANDING PANELS ON FEDERAL SYSTEM AND SOCIAL EQUITY

MEETING OF MAY 7, 2004
DRAFT MINUTES

GUEST ATTENDEES: Keith Aboucher, staff to Minority Whip Steny Hoyer; Lawrence C. Haake, Registrar, Chesterfield County, Va.; Patrick Leahy, professional staff, House Administration Committee; William Jenkins, Director for GAO's elections reform work; Matthew Petersen, counsel, House Administration Committee; Leslie Reynolds, executive director, National Association of State Secretaries of State

WELCOME AND ADMINISTRATIVE MATTERS
Paul Posner welcomed everyone to the joint meeting of the Federal System and Social Equity Standing Panels.

HELP AMERICA VOTE ACT (HAVA)
Patrick Leahy explained that after the 2000 Presidential Election Representative Hastert (R-IL) examined the possibility of creating a commission to look into election reform. However, because of how partisan the issue had become there was no further development.

On November 14, 2001, Representative Bob Ney (R-OH) introduced the HELP AMERICA VOTE ACT (HAVA). This bill requires States and localities to meet uniform and nondiscriminatory election technology and administration requirements applicable to Federal elections, to establish grant programs to provide assistance to States and localities to meet those requirements and to improve election technology and the administration of Federal elections, to establish the Election Administration Commission, and for other purposes. This law created new mandates for state and local elections officials and provided promises of new federal funds as well. The bill was passed in both houses on October 16, 2002 and signed into law by President Bush on October 29, 2002.

Leahy believes that HAVA is a "well crafted partisan pieced of legislation." It passed by overwhelming majorities in both the House and the Senate. The law contains minimum standards that the states are required to follow (i.e. a state-wide database). States will receive money for these standards. The Washington Post said that "it is the most significant civil rights law since the 1960s."

Keith Aboucher said that when the staff put HAVA together they thought they could just give states money to buy new equipment. As they got deeper into things they realized that there was more to it. They wanted to ensure that they didn't impede on the role of the states in the process. The law represents the first time in 225 years that the Federal Government has given money to states for the purpose of elections.

Aboucher explained that their big concern was how could they effectively deliver money to states in order to get the reforms that they want. They decided to give money directly to the states and hope that the states and local communities would share the money in an equitable manner. Aboucher said that now they are hearing that they should have made more requirements to ensure that money would go to local communities.

Matthew Petersen said that he started with House Committee on Administration in April of 2002. He said that he was pleased with the legislative process and the law. He did say however, that there are still some concerns.

• Funding in 2005
  o $3 billion was authorized but appropriations have fallen well short
  
• Security with Voting Machines
  o There is an issue between Technology and Paper. While, many want high-tech touch screen voting machines, concerns remain that some machines do not provide auditable written records of votes taken, presenting vulnerability that could impede accurate vote counts. Some states are moving to require electronic voting machines with paper trails.
  
• ID Provisions
  o There is a concern of how ID provisions will be implemented in the 2004 Election.
  
• Research and Development Pilot Program
  o $20 million was authorized in the law - none of it has been appropriated.
  
• State Administration Complaint Procedure
  o Too many requirements

Leslie Reynolds said that each state was required to put together a state plan after HAVA passed. These state plans were due to the Elections Assistance Commission by August 1, 2003. The Elections Assistance Commission did not exist on August 1, 2003.

Reynolds explained that 43 states applied for a wavier for the state-wide voter registration database. The following did not:

• Alaska
  
• Arizona
  
• Georgia
  
• Guam
  
• Minnesota
  
• South Carolina
  
• South Dakota
  
• US Virgin Islands
• West Virginia

Reynolds said that another challenge deals with the equipment purchasing process. The deadline is getting closer, and states still have not gotten their 2003 and 2004 funds.

Lawerence Haake serves as the Chesterfield County, Virginia General Registrar. Haake made the following observations about HAVA.

• HAVA funds cannot be used to enhance polling place accessibility on private property - churches, community centers, etc.
• There was much misinformation in the demonizing of punch cards and that many still believed incorrectly that punch cards were mandated to be replaced by HAVA. Complaints currently being lodged about touch screens could also apply to lever machines (no voter receipt, no confirmation of vote), and thus were not new issues unique to the touch screens. The 2006 deadline for "disabled-friendly" machines was putting pressure on vendors and election officials, leading to many of the problems.
• Virginia State Board of Elections (SBE) has not dispersed any HAVA funds to localities, even though two localities (New Kent and Norfolk) were well overdue. SBE reportedly has given themselves pay raises with HAVA funds; failed to appropriate the HAVA required matching state funds, that SBE expected the localities to pay the matching funds; charges an admission fee to localities to receive training on HAVA and other matters, even though SBE is funded at more than $80,000 for training; contracted to pay HAVA funds to another state agency for polling place surveys that had already been done (twice in Chesterfield); and did not know the difference between a paper ballot and a paper ballot voting system (from the requirement for voter education for optical scan.

Haake concluded by saying that he thinks that a Federal Elections official should have been appointed in the states to allocate the appropriated HAVA funds.

William Jenkins said that the basic goal of HAVA was for every eligible person in the US to be able to register to vote, vote, and have their vote counted. He believes that it is extremely difficult for states to implement HAVA.

Regarding the registration database, Jenkins recommended motor voter registration. He said that it is the least restrictive. It focuses on ease of access and not controls.

Jenkins said that in the end, the original HAVA goal needs to be kept in mind.

Beryl Radin asked if there is any experience with the Voting Rights Act one should be thinking about. Bill said that this is not an administrative issue, but rather a legal one.

Posner asked if there is a sustainable balance of power. Matt said that only time will tell.

Posner thanked everyone for their participation and adjourned the meeting at noon.

Response to Mr. Haake's Representation of HAVA Implementation in Virginia

May 28, 2004
Mr. Paul Posner
Chairman, Standing Panel on the Federal System
The National Academy of Public Administration
1100 New York Avenue, NW
Suite 1090 East
Washington, DC 20005
Dear Mr. Posner:

On Friday, May 7, 2004 the Standing Panels on the Federal System and on Social Equity and Justice hosted a joint meeting to focus on the implementation of the Help America Vote Act of 2002 (HAVA). As Secretary of the Virginia State Board of Elections (SBE), it has come to my attention that Mr. Lawrence Haake, the Chesterfield County, Virginia General Registrar, participated as a panelist and voiced a number of concerns related to Virginia's implementation of HAVA. While I have no first hand knowledge of the concerns Mr. Haake raised at the joint meeting, he circulated e-mail among his colleagues in Virginia (see Attachment A) summarizing the essence of his remarks.

As Secretary and the Chief Election Official in Virginia, I take my responsibility for the proper implementation of HAVA very seriously and I have grave concerns about the inaccurate representation of Virginia's efforts reflected in Mr. Haake's summary of his remarks. I would appreciate your assistance in augmenting the record by informing the panel participants of the inaccuracies in Mr. Haake's presentation and including this correspondence (including Attachments) in any official record of the proceedings of the May 7 meeting.

I fully appreciate the need to include a local perspective at any discussion of HAVA implementation and I applaud your effort to involve representatives of the local elections community on your panels. I would be happy to put you in touch with individuals who are more than capable of participating in this type of discussion and who are also well informed of the processes and efforts undertaken here in Virginia. Unfortunately, Mr. Haake was, and remains by choice, ill-informed of Virginia's efforts on HAVA implementation. Neither he nor any member of his staff has attended Annual Training for the past several years; at both our 2003 and 2004 training HAVA and Virginia's efforts at implementation were primary topics.

Thank you for your time and assistance on this matter. Should you wish to discuss my requests, I may be reached at 804/864-8903.

Sincerely,
Jean R. Jensen
Secretary

Mr. Haake states:

"1) Rumors that HAVA funds cannot be used to enhance polling place accessibility on private property - churches, community centers, etc. The response was that this rumor is false. They said this topic was researched during the writing of HAVA and it was their understanding that HAVA funds CAN be used to improve accessibility for a polling place regardless of its status (public or private)."

We have spoken with the Office of the Attorney General of Virginia on this matter. Article X, Section 10, of the Constitution of Virginia (1971) expressly prohibits the expenditure of public funds for private purposes (see Button v. Day, 208 Va. 494, 158 S.E.2d 735 (1968); Almond v. Day, 197 Va. 782, 91 S.E.2d 660 (1956); Report of the Attorney General (1973-1974) at 93).

We have consistently advised our localities that they may make temporary improvements to churches, homes and other private facilities. For example, while a locality may not use HAVA funding to build a permanent ramp for a church, they may purchase a temporary ramp that is used only on Election Day. Doug Rueff, our HAVA Accessibility Coordinator, contacted the Election Assistance Commission (EAC) for a clarification of the issue.

He was told that the EAC would turn the matter over to their legal department and provide a response. To date, we have heard nothing official from the EAC on this matter. Until we hear from some official source that the remedy Mr. Haake suggests is legal, SBE will continue to advise localities that, in accordance with the Virginia Constitution, only temporary improvements are appropriate for private facilities.

Mr. Haake next discusses voting machine issues (his number 2). We concur with his remarks.

Mr. Haake next states:

"3) Finally, I told them how Virginia SBE had not dispersed any HAVA funds to localities, even though two localities (New Kent and Norfolk) were well overdue."

The only HAVA funding Virginia has received to date are the Section 101 and Section 102 funds. While Mr. Haake is correct in stating that both the City of Norfolk and New Kent County are eligible for receiving those funds, Norfolk has not yet applied for them and New Kent County did so on May 13, 2004. At this time, SBE is processing payments to or on behalf of 13 localities, including New Kent County. Payments will be made in accordance with established state accounting procedures.

The implication in Mr. Haake's representation of his discussion on the panel is that we are improperly withholding funding from many localities. As the Chief Election Official in the Commonwealth of Virginia, and head of the Agency that must withstand a federal audit, I have determined that we must have full documentation for all requests and purchases.

In the Virginia State Plan (posted for public comment in 2003 and again in the Federal Register in 2004), Section 10, we clearly delineate the proposed uses for Title I funds. The only funds designated for distribution to localities are the Section 102 funds. Section 104 of HAVA reads, in part (see Section 104(d)(1)):

"If a State receiving funds under the program under this section fails to meet the deadline applicable to the State under subsection (a)(3), the State shall pay to the Administrator an amount equal to the noncompliant precinct percentage of the amount of the funds provided to the State under the program."

As Secretary of the State Board of Elections, I have made a determination that we cannot release any of a locality's Section 102 funding until the locality takes delivery of the replacement equipment; confirms that the delivered equipment is, in fact, what they ordered and is HAVA compliant. In other words, the SBE will not use Section 102 funds to pre-pay localities. I would be guilty of gross mismanagement were I to release funds to localities prematurely, before they had replaced their equipment. Any responsible administrator can easily see the potential for problems. For example:

Locality A receives their allocation of funds but decides they don't want to replace equipment after all. The first federal election of 2006 arrives and punch cards are still in place. Virginia must now send the federal government that funding back, but the locality refuses to return the funds.

Mr. Haake then states:

"I commented that SBE:

"A) Reportedly has given themselves pay raises with HAVA funds;"
SBE chose not to hire a full time HAVA coordinator but rather to integrate, to the maximum extent possible, implementation duties throughout the existing staff. Many of our staff members have been working on HAVA implementation for well over a year now. On December 15, 2003 modest salary supplements went into effect for SBE staff involved with HAVA implementation. We have hired some additional personnel to supplement staff (e.g., an Accessibility Coordinator, UOCAVA Coordinator) but these additional personnel are integrated into the existing staff structure of SBE. I made the decision to integrate the staff rather than create a separate HAVA office as many, if not most, HAVA programs and initiatives will live long after HAVA deadlines have passed.

In both Sections 6 and 10 of the State Plan, SBE allocates $2.5 million for "plan creation, implementation and management." We are using the Section 101 HAVA funds as we said we would. This has no impact on funds earmarked for localities.

Mr. Haake further states:

"I commented that SBE: …

"B) Failed to appropriate the HAVA required matching STATE funds, that SBE expected the localities to pay the matching funds;"

These are difficult budget times in Virginia and SBE, local governments and other state agencies worked together to arrive at a way to meet our matching fund obligation under HAVA. Since the funding provided by Congress for HAVA implementation is insufficient to meet all of our mandates, and the equipment is selected and owned by the localities, not the state, it made sense that localities would share in the cost of implementation. A small portion of the localities' cost to replace their equipment is providing the necessary 5% match.

Mr. Haake further states:

"I commented that SBE: …

"C) Charges an admission fee to localities to receive training on HAVA and other matters, even though SBE is funded at more than $80,000 for training;"

Mr. Haake is clearly uninformed on the actual cost of training and is confusing State appropriations and requirements with HAVA. Since 1999, SBE has been required, by law, to conduct Annual Training and been provided a line item in our state budget to accomplish this task.

Unfortunately, the amount provided by the legislature does not fully cover the cost of conducting and supporting the full range of training activities carried out by the SBE on an annual basis. Consequently, SBE charges a nominal fee ($60 per person for the 2004 training) to cover the cost of the facility in which the Annual Training is held. We have, for the past two years, used the Annual Training to address many HAVA issues, although Mr. Haake has failed to attend either session.

Mr. Haake further states:

"I commented that SBE: …

"D) Contracted to pay HAVA funds to another state agency for polling place surveys that had already been done (twice in Chesterfield); and;"
One of the biggest challenges facing the SBE is ensuring uniformity. A few years ago (under the previous administration), SBE undertook an effort to guarantee that every polling place was fully accessible. The agency provided surveys to localities and asked them to complete and return them to SBE. These self surveys were the only gauge by which SBE could measure the extent of compliance in each of Virginia's 2294 precincts. In 2003, we began spot checks and found that a number of polling places listed as fully accessible on the self surveys did, in fact, not meet minimum accessibility standards.

SBE contracted with the Department of Rehabilitative Services (DRS) to engage the Centers for Independent Living (CILs) to conduct an independent accessibility audit of every one of our 2294 precincts. I am committed to ensuring that every single polling place is fully accessible and I will not apologize for the approach SBE has taken. Chesterfield County may well be in full compliance. However, until the independent audits are complete, we will not know for sure.

In addition, our relationship with DRS and the CILs reaches beyond these independent audits and includes addressing the other requirements of the Accessibility grants. Specifically, DRS and the CILs will assist us in preparing the voter education material (for voters with disabilities) and in training election officials; both of these tasks are requirements of the U.S. Department of Health and Human Services (HHS) grants.

Mr. Haake finally states:

"I commented that SBE: …

"E) Did not know the difference between a paper ballot and a paper ballot voting system (from the requirement for voter education for optical scan)."
In this case, we have an honest difference of opinion with Mr. Haake; our position is based on research and advice from two members of the National Association of State Election Directors (NASED) Voting Systems Board, the entity responsible for overseeing the national certification of voting systems. Both Mr. Thomas R. Wilkey, Chairman of that Board and Dr. Brit Williams, a member of that Board, agree that optical scan voting systems are paper ballot voting systems. Mr. Haake disagrees.