Guest Blogged by John Gideon and Ellen Theisen, VotersUnite.Org

There can be little doubt that, of the issues springing from elections held since George W. Bush signed the Help America Vote Act (HAVA) of 2002, two are among the most significant. Those issues are failures of voting systems to meet the HAVA mandates for accuracy and accessibility and the confusion over the proper use of provisional ballots.

The states should have been able to look to the federal Election Assistance Commission (EAC) for guidance on both issues, but the EAC has failed to give the necessary Assistance, thus failing to fulfill duties assigned to the agency by federal law.

Now the EAC is proposing to extend its dereliction of duty for another two years. The result will be the publication of these important guidelines a full eight years after HAVA was enacted. The delay is inexcusable and intolerable, and the cost to American elections, on many fronts, is nearly incalculable…

HAVA requires the EAC to provide such guidance to the states, as Section 311 states:

And Section 312 goes on to mandate:

In a recent email to the EAC spokeswoman, Jeannie Layson, we asked about the guidance the EAC was required to provide several years ago. In the email we asked:

Layson responded that, in fact, the EAC had not issued any voluntary guidance on either Section 301 (voting systems) or Section 302 (provisional ballots). She correctly pointed to several advisories that had been published by the EAC, however.

She wrote in her response:

It is troubling that a federal commission assigned by Congress to give guidance to states concerning the use of voting systems and provisional ballots has been so long delinquent on that vital assignment. Not only has the EAC failed to meet the mandated deadlines of 1 January 2004 (Section 301) and 1 January 2003 (Section 302), but the Commission has also failed to meet the requirements for quadrennial updates of the guidance.

In its “Strategic Plan”, the EAC claims to be committed to “Timely performance of its duties”. Clearly the EAC has failed to meet this commitment.

By ignoring its mandate to provide guidance on provisional ballot usage, the EAC has allowed some states and local jurisdictions to misuse a system that was supposed to allow more voters to vote and have their votes counted. Instead we have heard many reports of election officials not even looking at provisional ballots because they decided that “counting the provisional ballots would not result in any changes in any races.” Clearly, the states have needed guidance, yet the EAC has remained silent.

By its negligence, the EAC has allowed private voting system vendors -““ with an undisputed conflict of interest -““ to become the de facto authorities on determining whether their own equipment is HAVA compliant. As a result, the states have poured billions of taxpayer dollars into inaccessible, unreliable, inaccurate equipment in a misguided attempt to avoid violating federal law. Voters have paid for equipment that has been shown to lose their votes or count their votes inaccurately. Voters with disabilities have paid for equipment on which they cannot vote independently and privately.

For example, many jurisdictions use ES&S iVotronic Direct Recording Electronic (DRE/touch-screen) voting machines to meet the accessibility requirement of HAVA. Yet when Hawaii was in the process of selecting a voting system to be used by the state, the evaluation team devalued the ES&S iVotronic for its failure to provide accessibility to people with disabilities.

Judy Paik, one member of Hawaii’s voting system evaluation team wrote in her report:

As California’s Top-to-Bottom-Review of the state’s electronic voting systems and other reports show, equipment made by the other vendors also falls short of meeting HAVA’s accessibility requirement.

During these recent years of conflict over voting systems and how they are tested, certified, and used and whether they actually meet the federal voluntary voting system standards and the requirements mandated by HAVA, no guidance has been provided by the one agency that is supposed to provide that guidance. Instead, by ignoring Section 311 and 312 of HAVA, the EAC has been silent while the voting machine vendors sold their wares as being compliant with HAVA — a claim that report after report shows to be untrue.

Now the Commissioners have decided that they need to comply with HAVA, so they have added an “Objective” into their “Strategic Plan” for 2009 to 2014, and the stated goal is to have some type of guidance to the states by 1 Oct. 2010 ““- seven years after the states needed that guidance. By then ““- as it is now ““- most of the money appropriated for HAVA will have been spent on systems that do not comply with the law. By then ““- as it is now -““ most states will be resistant to guidance that may lead to new expenses and new election procedures. By then, secretaries of state, private institutions, and private citizens will have done more to complete the job which, by the EAC’s silence, they have left undone, and the Commissioners’ guidance may be then -““ as it may be already ““- too little and too late.

The EAC’s refusal to comply with HAVA’s mandate to provide Assistance to the states has had enormous negative repercussions in the real world of American elections. Surely with the financial resources at their disposal from the taxpayers, the information available in reports from election officials across the country, as well as the National Institute of Standards and Technology (NIST), and the expertise available to them pro bono from the election integrity community, they should be able to provide some valuable guidance sooner than two years from now, a full eight years after the federal law was enacted.