ABSTRACT
As the National Commission on Federal Election Reform noted in its 2001 report, Congress has extensive powers to regulate elections under the Constitution (Carter and Ford 2002). The Voting Rights Act, laws governing voting by military and overseas civilians, and the passage of the Help America Vote Act of 2002 (HAVA), all illustrate that Congress has such power. However, when Congress enacted HAVA, it did not create a strong role for the federal government in elections, even though it was within its authority to do so. As Karlan and Ortiz (2002) note, there are several clauses within the Constitution, in addition to several constitutional amendments, that provide Congress with power to govern elections. For example, the elections clause (Article I, Section 1) states that “the times, places, and manner of holding elections . . . shall be prescribed in each state . . . but the Congress may at any time by law make or alter such regulations.” As they note, the courts have ruled that Congress has comprehensive authority under this clause to regulate elections, including the ability to regulate the federal elections process and to create procedures that safeguard the right of eligible voters to vote. Congress may also use its spending powers and the commerce clause to regulate elections as well. The Voting Rights Act is an example of the strong federal involvement Congress can have in regulating how state and local governments administer elections. HAVA created the Election Assistance Commission (EAC), which subsumed the role that the Office of Election Administration in the Federal Election Commission formerly held. The EAC “is intended to be the national clearinghouse of information on voting equipment, a resource to help states comply with new election standards, and a vehicle for compiling information and reviewing procedures” (Liebschutz and Palazzolo 2005: 508). However, HAVA explicitly did not confer power to the EAC to engage in rule-making or to pass requirements for uniformity across states. The EAC is primarily an
advisory body that disburses grant funding provided for by Congress. This activity was especially important in the first years of the EAC, when it gave out funding to states for purchasing new voting technologies and for modernizing state voter registration databases. The EAC has a four-member board that is nominated by the President, and then confirmed by the Senate, and a relatively small staff for carrying out its mandate. Initially, the EAC had a very difficult time getting its operations started owing to slowness on the part of Congress and the President in appointing members, and a slow start in getting staff online who could account for and distribute funding to the states for technology improvements in a timely manner (Montjoy and Chapin 2005). The agency has also been controversial among states, even though it has little power. At one point, the National Association of Secretaries of State urged Congress to dismantle the EAC entirely. As Elmendorf (2006: 428) has noted, the EAC lacks the basic rule-making powers needed to make reform: “The most straight-forward way of giving an independent agency a role in the development of election law is to authorize the body to implement open-textured standards through rulemaking.” The EAC has no such authorization; it can merely suggest reforms and offer guidance, as allowed by the restrictions in HAVA. Instead, the locus of election law in the United States is at the state level. As Alvarez and Hall (2005, 559) note, “Part of the reason for this decentralized model of election administration is constitutional because Articles I and II of the U.S. Constitution largely delegate election procedures for federal offices to the states.” Even though the federal government expanded its role in election administration with the passage of HAVA, it still leaves much of the business of election administration in the hands of the states. This means that there remain wide variations in election administration in the United States. Election laws are different across states, and administrative rules and structures vary across many dimensions. HAVA also illustrated another interesting aspect of election governance in the states, which is that states have historically delegated the role of election administration to the local and municipal levels. Although HAVA repeatedly uses the phrase “a state shall” in delineating the requirements for states under the law, states have, in many cases, pushed these requirements to the local level and not managed the implementation of the law centrally (Liebschutz and Palazzolo 2005). For example, HAVA requires states to have a state-wide voter registration database. Some states have created voter registration databases that are centrally administered at the state level but other states have merely linked together the county or municipally run voter registration systems and called the cobbled-together system a state-wide voter registration system.1 In the first case the state is being pro-active and assuming the role of administrator as stated in HAVA (“the state shall . . .”) but in the second case the state is continuing the practice of allowing local governments to have control over the election process.
