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Not Helping America Vote: The Plight of the Un-filled Election Assistance Commission

by Elizabeth Hudler // Published February 26, 2013

We applaud President Barack Obama for shining a spotlight on election reform by using the State of the Union address to announce the creation of a bipartisan election commission. Although many people did not have to wait hours to vote, far too many did. The right to vote is too precious to leave to the administrative whims and resources of state and local election officials. Instead, we should promulgate national standards, developing and sharing best practices from each state to uphold the right to vote.

Captained by the top campaign lawyers for the presidential campaigns of Obama and his Republican challenger Mitt Romney, the commission has real promise to propose steps to improve the Election Day experience. But make no mistake, it should not be a substitute for upholding existing federal law. In response, we're calling on the President and Congress to allow the Election Assistance Commission (EAC) to do its job.

In 2002, Congress passed the Help America Vote Act (HAVA) to advance electoral reform in a number of ways, including creation of the EAC to oversee distribution of the first federal funds in history designed to help states and cities administer elections. The Commission was grounded in the notion that if best practices were shared throughout the nation, and standards were set and measured before and after elections, election officials nationwide would adopt similar procedures and practices, and elections would become more equal, fair and efficient over time. One issue on that list? Long lines.

HAVA mandates that Congress and the White House work together to recommend and nominate individuals, two from each party, to serve on the EAC. That partisan balance of course reflects the distrust both parties have about changes involving elections, but until we have united support for our Pledge to Stand with Voters, we unfortunately have to live with such calculation.

Establishing the EAC is one step in the essential process of allowing local and state government to make key decisions about voting, simultaneously seeding government accountability in the protection of our right to vote. Together with a staff and executive director, the EAC is tasked with studying elections, culling information from local and state levels, and analyzing reports in order to produce minimum standards for elections nationwide. It also creates national standards for voting equipment and software, and oversees testing of equipment to assist the majority of states that choose to abide by those standards. 

But the EAC hasn't had even a single commissioner since December 2011. Since 2010, the commission hasn’t had a quorum, and since 2009, the commission has not been fully staffed. Its Executive Director stepped down in 2011. Without a full quorum of commissioners, EAC employees continue to work according to the policies and procedures adopted by the commission in previous years, but cannot make headway in setting new standards for our elections.

The EAC can continue to test, certify and decertify voting equipment, but only according to 2005 standards rather than newer ones reflecting new insights and upgrades in technologies. The EAC cannot determine new policies or guidelines including the Voluntary Voting Systems Guidelines, National Voter Registration Act regulations, the National Voter Registration form and issuance of EAC advisories among others. Furthermore, if its decisions on certification are contested, the Commission is at a standstill without the full set of commissioners to rule on an appeal.

For nearly three years, Congress has been unable and, in several cases, unwilling to put forward nominees, let alone confirm candidates. In November of 2012, Senator Barbara Boxer sent a letter to House Speaker John Boehner (R-OH) and Senate Minority Leader Mitch McConnell (R-KY) urging the cooperation of House and Senate Republicans in appointing and confirming nominees to the EAC. Senate minority leader Mitch McConnell, who played a lead role in passing HAVA, might be willing to comply and get the EAC up and running, but the primary culprits seem to be leaders in the House. Representatives seem intent on keeping the EAC off track and national support for election reform off the table. Neither of the leaders targeted by Sen. Boxer, nor the Republican Party, responded publicly to the letter, and at the close of the 112th session, the two pending nominations, both from the Democratic Party, were not confirmed by the Senate Committee on Rules.  Political gaming seemed to outweigh meeting voters’ needs and upholding the law.

Just after President Obama's State of the Union address, for example, Congresswoman Candace Miller, chair of the House Administration Committee tasked with election law, said, "[I am] completely opposed to such a commission putting forward mandates to be imposed on states like Michigan that would disrupt our already well-run system of elections." In fact, despite Congresswoman Miller’s confidence, many Michigan voters reported reported frustration this past November.

National standards don’t offer a one-size fits all solution, but they do provide a base of uniform best practices for each state. And Michigan, like every other state, has unique voting policies and guidelines, the end result being inequity in access for voters nationwide. Local innovation and responsibility is great for the development of our electoral system, but we also need accountability and a national commitment to upholding voters’ rights . 

The Election Assistance Commission of course is not the only step between a dysfunctional system and a strong electoral structure built with elements that improve access and participation while resulting in more accurate representation. For fair access, Congress should adopt legislation like the Voter Empowerment Act and back a constitutional right to vote. More broadly, we should establish independent redistricting commissions to create fair voting plans, and promote ranked choice voting and a national popular vote for president.

But creating an active EAC is a simple positive step – and one that happens to be the law. Reform should be about systemic, enduring solutions, not just shorter lines. #wehavetofixthat

Call on Congress and the White House now to make the Election Assistance Commission work.