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Do Nothing 'Til You Hear From Me: EAC Shutdown of HAVA Boards Provokes Resistance from State Election Officials

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[Image courtesy of lerve]

Last week, the Acting Executive Director and General Counsel of the U.S. Election Assistance Commission issued a memo directing the EAC's 37-member Board of Advisors and 110-member Standards Board to cease all official activities.

The two boards, created as part of the Help America Vote Act of 2002, have wide-ranging responsibilities and - in the wake of the resignations of the remaining Commissioners due in part to the growing partisan battle over the EAC's future in Congress - had been the most active in carrying out the duties of the agency.

The March 25 memo, however, suggests that the lack of EAC Commssioners has a direct impact on the status of the Boards in that there is no longer a "Designated Federal Official" (DFO) for such boards as required under the Federal Advisory Committee Act. EAC policy is to require that the Chair appoint such DFOs - and without Commissioners there is no chair. Consequently, the memo asks the Boards to cease all activity until DFOs can be appointed - but noting that "it appears unlikely that the Senate will confirm new Commissioners in 2012."

In response, the National Association of State Election Directors - with the subsequent, albeit separate, endorsement of the National Association of Secretaries of State - approved a resolution (2012-1) disagreeing with the memo's analysis and asking the EAC to reconsider its suspension of the two Boards:

The National Association of State Election Directors formally requests the Acting Director of the Election Assistance Commission reconsider his actions in the memo dated January 27, 2012, in which he formally requested the Standards Board and Board of Advisors not to conduct official business ...

The Standards Board and Board of Advisors are creations of Congress and not the Election Assistance Commission.  Further, there is nothing in [the] Federal Advisory Committee Act (FACA) that prevents the EAC from appointing a Designated Federal Officer (DFO).

As Congressionally created statutory bodies, with membership specified by law rather than by rules or regulations of the EAC, we believe it is necessary for the bodies to be able to continue their roles and responsibilities even if the EAC operates for a time without a full Commission ...

[C]ontinued drafting of proposed voting system standards by the Technical Guidelines
Development Committee without the input of state and local government election officials who serve on the Standards Board and the Board of Advisors, would be contrary to the intent of the Help America Vote Act.

We recognize that the Boards offer advice which may or may not be followed by the Commission or its staff, but the Boards are intended to share the experience and expertise of election professionals and community stakeholders to further the work which was assigned to the Commission by Congress.  It is our belief that Congress fully intended the essential input of state and local governments as a necessary review of proposed Federal policy related to election administration.

This dispute, which finally makes tangible the consequences of the current uncertain status of the EAC and its work under HAVA, could be the impetus the field of elections - and more importantly, Congress - needs to begin thinking more concretely about the future of the agency and what, if any, role the EAC and HAVA should have in America's system of election administration.

As I seem to say a lot these days ... stay tuned.


  • Great Blog!

    Small question: Are you able to support your statement that the Board of Advisors and the Standards Board (NOT the TGDC) have "... been the most active in carrying out the duties of the agency"?

  • [Note to non-geeks - I'm about to wade into the weeds; proceed at you own peril!]

    Dear Contrary Bear:

    1. I chose the word "active" (as opposed to "productive") deliberately; if nothing else, the activities of both Boards have been steady (if not constant) even as the EAC itself has slipped into Congressional-induced paralysis;

    2. I didn't mean to imply that the Boards have been more active than the TGDC; it goes without saying that the TGDC has been the engine that could in the field of voting technology as the EAC has slowly ceased to function otherwise. However, I don't necessarily think it's fair to separate the two given the perspective that the Boards bring to TGDC (including common members) ... as the NASED resolution (endorsed by NASS) states, the election community believes the Boards play an important function in the work done by TGDC.

    3. Indeed, it's hard to tell how the memo's reasoning regarding the Boards' lack of a proper DFO doesn't apply to the TGDC as well, given that DFO Davidson is no longer an EAC Commissioner. In any event, the work of the TGDC can't be validated by the Boards as required by HAVA given that the Commission - and now the Boards - can't refer the TGDC's work for approval because those bodies have all (for the time being) ceased to exist.

    In summary - if your quibble is that the TGDC is more active/productive than the Boards, point taken; nevertheless, the TGDC may be soon staring into the very same void NASED and NASS are resisting with their alternate views of FACA's applicability to the Boards.

  • As a member of the TGDC I can tell you that we have not received a similar letter. It is my understanding that the TGDC may be saved from a similar fate as the other boards because NIST may be able to appoint a temporary DFO. I do not believe a decision has been made on this but this option is apparently being explored. Wait and see.

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