B-316107, Election Assistance Commission--Availability of Funds for Purchase of Replacement Voting Equipment, March 19, 2008
Decision
Matter of: Election Assistance Commission—Availability of Funds for Purchase of Replacement Voting Equipment
DIGEST
Section 251 of the Help America Vote Act of 2002 (HAVA), 42 U.S.C. sect. 15401, authorizes the Election Assistance Commission (EAC) to provide payments to states for a variety of enumerated purposes, including procurement of HAVA-compliant voting systems to improve the administration of federal elections. HAVA leaves to the states what type of voting equipment the individual states should use, as long as the equipment complies with HAVA. At issue in this decision is whether under section 251 of HAVA a state may fund the replacement of HAVA-compliant voting systems, originally purchased with HAVA funds, with a different kind of HAVA-compliant voting system. We conclude that EAC’s proposed policy to permit such expenses is within EAC’s discretion in its exercise of statutory authority under HAVA.
DECISION
The Election Assistance
Commission (EAC) has requested a decision regarding its Proposed Policy to
permit use of Help America Vote Act of 2002 (HAVA) funds to purchase a
HAVA-compliant voting system even though the system replaced was originally
purchased with HAVA funds.[1] Letter from Rosemary E. Rodriguez, Chair,
Election Assistance Commission, to David M. Walker, Comptroller General of the
EAC included in its request for an expedited decision in
this matter its legal views and relevant factual material. To supplement the record, we held a telephone
conference call with EAC officials on
BACKGROUND
The
Help America Vote Act of 2002 (HAVA) established the EAC to assist in the administration
of federal elections and charged the EAC with distributing payments to states
under its authorized funding programs.
Pub. L. No. 107-252, 116 Stat. 1666 (
Section 251 authorizes payments to states, referred to as “requirements payments,” for certain enumerated purposes, including improving the administration of elections for federal office. HAVA provides that states may use requirements payments to implement provisional voting; provide information to voters in the polling place; procure voting systems that comply with the requirements of Title III of HAVA;[3] develop and implement a computerized statewide voter registration list; implement identification requirements for first-time voters who register to vote by mail; and improve the administration of elections for federal office. In addition, HAVA section 251(b)(2) allows a state to use section 251 payments to improve the administration of elections for federal office if the state has certified to EAC that it has met the requirements of Title III.[4] EAC received appropriations in fiscal years 2003, 2004, and 2008 for requirements payments.[5] EAC distributed requirements payments to states between June 2004 and December 2005,[6] and they are maintained in the election fund of the individual state. Requirements payments are allocated among the states based on the relative size of the state’s voting age population.[7]
In addition to distributing payments to states under the
HAVA funding programs, EAC oversees and administers states’ use of funds. HAVA also authorizes EAC to audit or examine
the recipient of a grant or other payment made under HAVA. As part of its audits, EAC may examine
records relating to the amount and disposition of HAVA payments. 42 U.S.C. sect. 15542. EAC is required to provide information and
training on the management of the payments and grants. 42 U.S.C. sect. 15322. In addition, a condition of receipt of requirements
payments is the states’ submission to EAC of a state plan that accounts for the
use of the payments. 42 U.S.C. sections
15403--15404. States must submit a
report to the EAC about the activities conducted with the funds including a
list of expenditures, the number and type of voting equipment obtained with the
funds, and an analysis and description of the activities funded under section
251. 42 U.S.C. sect. 15408.
In May 2007, the EAC
responded to an inquiry from the state of
In its submission to us, EAC referenced the House Appropriations Committee report accompanying the Financial Services and General Government Appropriations bill for Fiscal Year 2008, directing EAC to reconsider its ruling in the May 2007 Policy. H.R. Rep. No. 110-207, at 56 (2007). In a letter dated January 23, 2008, the Subcommittee on Financial Services and General Government asked the EAC to reverse the May 2007 Policy. Proposed Policy, at 3. EAC’s Proposed Policy would reverse the May 2007 Policy, concluding that OMB Circular No. A-87 does not prohibit a state’s use of HAVA funds to replace voting systems purchased with HAVA funds, as long as such purchases comply with HAVA.
DISCUSSION
HAVA neither expressly authorizes nor prohibits the use of section
251 funds to purchase replacement voting systems. Where a given expenditure is neither
specifically provided for nor prohibited, an agency’s appropriation is
available so long as the proposed expenditure bears a reasonable relationship
to fulfilling an authorized purpose or function of the agency. B-286457,
Here, the question is whether EAC’s proposed policy decision to permit a state’s use of HAVA funds, appropriated for the purpose of improving the administration of federal elections, is a reasonable exercise of EAC’s discretion in administering these funds. There is no provision in HAVA, in section 251 or otherwise, that addresses the issue of whether states can use section 251 funds to purchase HAVA-compliant voting systems to replace HAVA-compliant voting systems originally purchased with HAVA funds. HAVA only requires that voting systems comply with the requirements of Title III. EAC’s Proposed Policy is consistent with HAVA’s statutory scheme. Section 251 clearly authorizes a state to use a requirements payment to carry out activities to improve the administration of elections for federal office if the state has met the certification condition. Importantly, HAVA does not require or recommend a specific type of voting system, and states are free to choose the type and model of voting equipment that they wish to use, as long as that system meets or exceeds the requirements of HAVA. 42 U.S.C. sect.15481(c)(1).[10] Consistent with HAVA, EAC’s Proposed Policy does not direct or otherwise imply that states select one type of voting system over another. EAC’s Proposed Policy only requires that the systems selected be HAVA-compliant.
In 2007, EAC applied
the cost principle of reasonableness of OMB Circular No. A-87. In the Proposed Policy, EAC reconsidered that
application. EAC's reconsideration is a
reasonable exercise of its discretion concerning the use of its appropriations
under section 251. Here, OMB Circular
No. A-87 cost principles must be understood within the statutory scheme of
section 251, and a determination of reasonableness under those cost principles,
once made, should not be viewed as an insurmountable obstacle to EAC’s review
and exercise of its discretion under section 251 to improve the administration
of elections for federal office.
CONCLUSION
Section 251 of HAVA provides payments to states for a variety of enumerated purposes, including procurement of voting systems that are HAVA-compliant for the purpose of improving the administration of federal elections. HAVA leaves to each state the decision on what type of voting equipment the state wishes to use, as long as the equipment complies with HAVA. EAC’s proposed policy to permit states to use section 251 funds to replace HAVA-compliant voting systems even if the systems were originally purchased with HAVA funds is within EAC’s legitimate range of discretion in its exercise of statutory authority under HAVA.
Gary L. Kepplinger
General Counsel
[1] Election Assistance Commission, Proposed Policy Clarification On the Allowable Uses of Help America Vote Act Funds Authorized Under Titles I and II (Mar. 20, 2008), available at www.eac.gov/News/meetings/march-20-2008-public-meeting (last visited Mar. 17, 2008) (Proposed Policy).
[2] Before the formation of EAC, the General
Services Administration (GSA) distributed payments under Title I of HAVA. 42 U.S.C. sections 15301–15306.
[3] Title III of HAVA requires voting systems to permit the voter to verify the vote selected before the voter casts the ballot and to change the vote before the ballot is cast and counted; notify the voter if the voter has selected more than a single candidate and the impact of selecting more than one candidate, and allow the voter to correct the ballot; provide a voter education system for jurisdictions that use a paper ballot, punch card, or central count voting systems; produce an auditable record; be accessible for individuals with disabilities; provide alternative language accessibility; and meet minimum error rates for counting ballots. 42 U.S.C. sect. 15481.
[4] Sections 251 and 252 also permit states to use section 251 funds to improve the administration of elections for federal office if they certify that they will not spend more than the amount of the minimum payment available to the state under section 252(c). 42 U.S.C. sections 15401–15402.
[5]
In fiscal year 2003, EAC received $830 million for requirements payments. Consolidated Appropriations Resolution, 2003,
Pub. L. No. 108-7, div. N, 117 Stat. 11, 537 (
[6]
Election Assistance Commission, Report to
Congress on State Governments’ Expenditures of Help
[7] Section 252 provides the formula for allocation of the money to the states. 42 U.S.C. sect. 15402.
[8]
May 2007 Policy, available at http://www.eac.gov/News
(search “Florida Use of HAVA Funds”; then follow “
[9]
OMB Circular No. A-87 addresses the use of federal funds to purchase goods for
state and local governments. OMB Cir.
No. A-87, Cost Principles for State,
Local and Indian Tribal Governments (
[10] See also 42 U.S.C. sect. 15485 (stating that methods of implementation are left to the discretion of the state) and 42 U.S.C. sect. 15329 (EAC shall not have authority to issue any rule, promulgate any regulation, or take any other action which imposes any requirement on any state, except to the extent permitted under section 9(a) of the National Voter Registration Act of 1993, 42 U.S.C. sect. 1973gg-7(a), which requires the EAC to promulgate regulations for the development of a mail voter registration form).