The Election Assistance Commission (EAC) was created by the Help America Vote Act of 2002 (HAVA).
According to the EAC's Mission Statement:
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The U.S. Election Assistance Commission – an independent bipartisan agency – is charged with disbursing payments to states for replacement of voting systems and election administration improvements, adopting voluntary voting system guidelines, and serving as a national clearinghouse and resource of information regarding election administration.
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Let's review this 'Mission Statement' and see how the EAC is doing.
Independent, Bipartisan Agency
There are many examples of the EAC’s failure to maintain bipartisanship in its work. I present only two.
First, the debate about the need for voter ID to stop voting fraud in the polling place has been clearly split across party lines, with Republicans advocating and Democrats opposing such laws. In September of 2005 the EAC commissioned bipartisan researchers to examine, among other issues, the extent of voting fraud, such as “dead voters,” double-voting, non-citizens voting, and ineligible felons voting. On May 17, 2006, the researchers presented their “Status Report On The Voter Fraud-Voter Intimidation Research Project” to the EAC.
Their interviews with experts and examination of media reports and legal case files for the past five years showed little evidence of voting fraud and substantially more evidence of voter intimidation. The EAC might have furthered its mission as an information clearinghouse by allowing this preliminary report to inform the debate in the U.S. House of Representatives on H.R. 4844, a bill requiring Voter ID for voters who vote in person at the polling place and not for absentee voters. Specifically, the report stated
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There is virtually universal agreement that absentee ballot fraud is the biggest problem, with vote buying and registration fraud coming in after that.
There is widespread but not unanimous agreement that there is little polling place fraud, or at least much less than is claimed, including voter impersonation, "dead" voters, noncitizen voting and felon voters.
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and
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...many of those interviewed assert that new identification requirements are the modern version of voter intimidation and suppression.
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The EAC’s partisan bias favoring the Republican position on Voter ID laws is revealed by two facts: 1) the Commissioners withheld these valuable findings during the four months before the House passed H.R. 4844, and 2) in their final report of December 2006, they ultimately suppressed their own research indicating that Voter ID requirements could increase voter intimidation while attempting to solve a virtually non-existent voting fraud problem.
In fact, as reported by VoteTrustUSA, DeGregorio, a Republican member of the EAC, minimized the initial report in his statements to the media. VoteTrustUSA relates:
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Commenting on the earlier report, released by USA Today, EAC Chairman Paul DeGregorio noted that the report was only preliminary and cautioned that more investigation is needed to understand the amount of voter fraud in this country. Mr. DeGregorio did not mention the existence of the final report. In an Associated Press article Mr. DeGregorio observed "Many times people put their own partisan spin on voter fraud and voter intimidation.
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Mr. DeGregorio is correct. By withholding vital, bipartisan research results that would have contradicted the Republican position on Voter ID laws, the Commissioners did put their own partisan spin on voter fraud and voter intimidation.
Another example: Recently EAC Commissioner, and new Chairwoman, Donetta Davidson, spoke before the "Florida State Association of Supervisors of Elections". In her speech [1] she had this to say:
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It was the Democrat [unintelligible] that was pushing that bill [HR-550]. And, uh, the Republicans kept saying, "Trust me, it's not goin’ through". So none of us worried about it that much because we knew that it wasn't going to be moving forward to get the votes it needed. It may in the House but, it was goin’ to be killed in the Senate ...
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In this statement, the Chairwoman of the EAC revealed that not only is she not independent but she is also willing to play partisan politics in her efforts to ensure that legislation contrary to her goal of making elections paperless was "Dead On Arrival" in the Senate.
Disbursing Payments to States For Replacement of Voting Systems and Election Administration Improvements
In FY 2004 and 2005 the EAC distributed over $2.25B to the States so they could implement the Title III requirements of HAVA. As discussed below much of these funds were spent on voting systems that, in fact, do not meet the requirements of HAVA.
While the Help America Vote Act of 2002 did not give the EAC many regulatory rights, the EAC had the mandate to control the funds that were issued to the states. Control of funds should have ensured those funds were spent on HAVA-compliant voting systems. The EAC failed in this responsibility to enforce HAVA compliance and turned all responsibility for compliance over to the states.
Adopting Voluntary Voting Systems Guidelines
After an investigation requested by Congress, the Government Accountability Office wrote:
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While electronic voting systems hold promise for improving the election process, numerous entities have raised concerns about their security and reliability, citing instances of weak security controls, system design flaws, inadequate system version control, inadequate security testing, incorrect system configuration, poor security management, and vague or incomplete voting system standards.
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While the EAC was not appointed until late in 2003 and their funding was slow in coming, they took much longer than the time allowed by HAVA to take charge of the voting system guidelines and certification process. While HAVA allowed one year for the development of the Voluntary Voting System Guidelines (VVSG), the Commission took two years, and it was November 2006 before the EAC finally took control of the voting systems certification process. Until then the National Association of State Elections Directors (NASED) had nearly complete control over the "qualification" of voting systems. Even though the EAC had nominal and legal control over the process, all questions/comments about the process were deferred to NASED.
The inappropriately-named 2005 VVSG, which were signed by the commissioners in January 2006, will actually not come into effect until 24 months later on December 2007. The process for writing and approving these standards was very much slanted toward the wishes of the voting systems vendors. During approval meetings of the "Technical Guidelines Development Committee," which is the committee that developed the 2005 VVSG, members of the committee, even after being warned by the chairman, openly consulted with representatives of the vendors in order to get their input into decisions on standards.
National Clearinghouse and Resource of Information
In September 2005 the Government Accountability Office released a report on the EAC's performance, which pointed out that the commission had not met its mandate as a clearinghouse and resource of information. In fact the GAO was critical of the EAC on that point.
In an article on VoteTrustUSA, I reported:
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Knowing that the Elections Assistance Commission (EAC) was formed, in part, to be a clearinghouse of information for elections officials and voters, I contacted them to find out what they knew about bad memory cards and what action they were going to take to ensure all ES&S customers were notified of the problem. In my email to the EAC Spokeswoman, I asked, in part:
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In view of the fact that the EAC is supposed to be a clearinghouse of information such as this failure information, has the EAC done anything at all to ensure that ES&S notifies all of their customers of this failure? We are into primary election time. There were failures of voting equipment in Texas last week. Some of that equipment was ES&S though the bigger failures were on Hart Intercivic systems. Someone should ensure that all ES&S customers are made aware of the failure of memory cards and that they are all tested or recalled. Will the EAC do that?
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The next day I received this response:
Mr. Gideon,
Per your inquiry, EAC staff was made aware of this situation by the vendor, and the vendor said these customers have already been notified about the situation. When EAC assumes responsibility for the certification program, the agency will certainly share this kind of information with election officials.
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This carefully worded response tells me that ES&S has very probably only contacted Summit Co., OH and North Carolina; "these customers". In fact, I took the time to do the EAC's job for them and I contacted a few states that have May primaries and that use M-100 optical scan machines. The people in state elections offices that I talked to were not aware of the problem and, in fact, they were not surprised that ES&S didn't contact them.
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Clearly the EAC's "Mission Statement" requires them to be a clearinghouse and resource yet they have failed to take on that responsibility even after the GAO held them accountable.
The EAC is also guilty of allowing misinformation about the Help America Vote Act to be used by vendors and some state and local elections officials to further their own purposes. It is left to the citizen to wonder why the single government entity that was to be "the" resource for information about HAVA would allow misinformation to flourish.
For instance, the media has been full of reports stating that HAVA mandated the replacement of all punch-card voting systems. Clearly Section 301 (a)(1)(B) allowed for the use of punch-card voting systems in conjunction with an educational program to help prevent over-voting and teach voters how to correct their ballots.
There was also widespread misinformation that the use of DREs was required for accessibility voting. Vendors and some election officials still point to HAVA with the claims that it mandates the use of DREs for accessibility and that the accessibility must only be for those voters who are blind or sight impaired. Section 301(a) of HAVA clearly does not mandate DREs for accessibility, nor does it limit the requirement to people who are blind or visually impaired.
Finally in 2005, the EAC issued an advisory that explained how to determine whether a voting system was compliant with the Section 301(a) requirements of HAVA, yet they never contradicted the misinformation put out by the media and some election officials.
The EAC's failure to make a stand on accessible voting machines has allowed the proliferation of DRE voting systems that are, in fact, in violation of HAVA and do not even meet the clear words in the EAC's own advisory. This fact has probably served to disenfranchise some voters with disabilities and has certainly left counties, states, and the vendors open to lawsuits.
Conclusion
The EAC was established by HAVA to oversee the implementation of HAVA. Their oversight has been minimal and irresponsible. Instead of providing the informed leadership and guidance the states needed as they purchased and deployed new voting systems, the Commissioners have deferred to the wishes of vendors, propagated preconceived notions of election officials, and acceded to popularly-disseminated misinformation. They have failed to accomplish the goals in their mission statement. It would be very unwise to assign them any new important duties until they begin to fulfill those already assigned to them.
[1] Audio File of This Statement – 6mins into the following link – Transcribed by the author - http://www.votetrustusa.org/audio/EAC/DDFL4.mp3
