A week later, Brewer fired back in a terse response disputing the EAC's reasoning and conclusions, and insisting she would continue to require Arizona registrars to apply Prop 200 to all registration forms, including the federal form. In defense of Prop 200, she cited the pre-clearance of the state's registration requirements - and its registration form - by the U.S. Department of Justice. She urged the Commission to relent; arguing that failure to do so "would be incredibly irresponsible and may unnecessarily disenfranchise voters using the Federal Form to register."
Recently, a coalition of voter advocacy groups announced their intention to file suit, claiming that Prop 200 would affect registrants who lack the requisite identification - mostly out-of-state students or military voters.
Why you should pay attention
The showdown is, in many ways, a classic dispute between litigants - differing interpretations of applicable law and relevant facts (including whether Prop 200 affects the federal form or just the instructions for completing it) ultimately to be decided by the judiciary using established methods of legal reasoning.
That's all "law talk", however - and this case is much more interesting than just another caption in a casebook. Instead, Arizona v. EAC has potentially wide-ranging implications for election reform:
1. Arizona is challenging the EAC in an area where it actually has regulatory authority.
Most people who follow election reform are familiar with some version of the phrase "although the EAC lacks regulatory authority with regard to the Help America Vote Act (HAVA) --
The conventional wisdom is that because HAVA withholds regulatory power from the EAC, the EAC therefore lacks regulatory authority of any kind. And yet, like so much conventional wisdom - it is wrong. HAVA Section 802 expressly transfers to the EAC regulatory authority over NVRA - meaning that the EAC's interpretation of NVRA can be binding regulation, rather than "provisional guidance" as it would be under HAVA.
The difference is significant. HAVA notwithstanding, NVRA is arguably the most sweeping assertion of federal authority over state election procedures since the 1982 amendments to the Voting Rights Act of 1965...
If, therefore, Arizona is successful in using the EAC's HAVA toothlessness to remove its NVRA teeth, it would once again shift the balance of power between those seeking greater access to voters and those seeking to enhance the integrity of the election process.
On the other hand, if the EAC were to "win" this showdown, it might be emboldened to expand its influence (or "cut its teeth") in other areas - including but not limited to HAVA.
What Needs to Change
The article above puts to rest Holt Bill proponent's rebuttals that the EAC is not regulatory and that the guidelines are voluntary. Other rebuttals to grassroots concerns are that the parameters for audit are clearly delineated, and that hired hands for recounts is good because even election reform organizations can mount recounts if desired. This sounds good on the surface, but the truth is these rebuttals to our concerns don't add up.
Proponents of the bill need to at least address the following concerns and make revisions to the bill in order to gain widespread grassroots support:
1. The very real possibility that the EAC will become regulatory, either through de facto litigation outcomes, or in much the same way the FEC did: with a single line of text inserted into a completely unrelated congressional act. It will then become an executive agency, reporting to the executive branch of government.
2. The question of crony appointments creating power over the nation's election systems, as shown in GW Bush's recent recess FEC appointment, a stunning example of how a president can use crony appointments to control election-related issues without the benefit of checks and balances for the American people.
3. The concerns and questions that have already been raised by organizations such as ACCURATE, EPIC, and other ordinary citizens like myself, about the composition of the EAC and the non-transparent manner in which the EAC conducts itself and its decision making process.
4. The fact that the bill would enable the institution of yet another privatized election industry in the form of contracted recount firms.
5. The possible subversion -- through assent of potentially corrupt local officials -- and constitutional conflict with federal oversight of state and local elections.
6. The question of how the parameters for audit are exactly defined, given ambiguous language such as shown in the bolded section: "IN GENERAL.""The Election Assistance Commission shall conduct random, unannounced, hand counts of the voter-verified records required to be produced and preserved pursuant to section 301(a)(2) of the Help America Vote Act of 2002 (as amended by section 2) for each general election for Federal office (and, at the option of the State or jurisdiction involved, of elections for State and local office held at the same time as such an election for Federal office) in at least 2 percent of the precincts (or equivalent locations) in each State.
7. The absence of any form of real best management practices and guidelines for conducting hand counts that would account for the various and varied precincts in the nation, and enable orderly procedures for the mandated recounts.
8. The possibility of countless unintended consequences stemming from federal audits, such as chaotic hand count management, or litigation resulting in court-appointed rather than elected officials, as we saw in 2000.
9. The fact that election system traditions, customs, and configurations vary from locale to locale, and a one-size-fits-all imperative from above - the Federal level - will cause chaos. We have seen this with campaign finance and the FEC, with the NVRA, and more recently with HAVA.
One no longer needs to be a conservative to be a federalist. There are many of us progressive federalists, and given the nature of the current administration I would imagine this political ideology has a rightful place in any discussion. The integrity of our republic depends on real checks and balances in its foundational democratic systems and processes.
We, the grassroots, would like to support the Holt bill; it has great promise to heal some of the wounds inflicted with the passage of HAVA. But can not do so until it is revised to appropriately bring it back to its original intent: the re-institution of verifiable elections through the use of real, voter-marked and verifiable paper ballots, and the elimination of black box voting products.
Recently, a coalition of voter advocacy groups announced their intention to file suit, claiming that Prop 200 would affect registrants who lack the requisite identification - mostly out-of-state students or military voters.
Why you should pay attention
The showdown is, in many ways, a classic dispute between litigants - differing interpretations of applicable law and relevant facts (including whether Prop 200 affects the federal form or just the instructions for completing it) ultimately to be decided by the judiciary using established methods of legal reasoning.
That's all "law talk", however - and this case is much more interesting than just another caption in a casebook. Instead, Arizona v. EAC has potentially wide-ranging implications for election reform:
Most people who follow election reform are familiar with some version of the phrase "although the EAC lacks regulatory authority with regard to the Help America Vote Act (HAVA) --
The conventional wisdom is that because HAVA withholds regulatory power from the EAC, the EAC therefore lacks regulatory authority of any kind. And yet, like so much conventional wisdom - it is wrong. HAVA Section 802 expressly transfers to the EAC regulatory authority over NVRA - meaning that the EAC's interpretation of NVRA can be binding regulation, rather than "provisional guidance" as it would be under HAVA.
The difference is significant. HAVA notwithstanding, NVRA is arguably the most sweeping assertion of federal authority over state election procedures since the 1982 amendments to the Voting Rights Act of 1965...
If, therefore, Arizona is successful in using the EAC's HAVA toothlessness to remove its NVRA teeth, it would once again shift the balance of power between those seeking greater access to voters and those seeking to enhance the integrity of the election process.
On the other hand, if the EAC were to "win" this showdown, it might be emboldened to expand its influence (or "cut its teeth") in other areas - including but not limited to HAVA.
What Needs to Change
The article above puts to rest Holt Bill proponent's rebuttals that the EAC is not regulatory and that the guidelines are voluntary. Other rebuttals to grassroots concerns are that the parameters for audit are clearly delineated, and that hired hands for recounts is good because even election reform organizations can mount recounts if desired. This sounds good on the surface, but the truth is these rebuttals to our concerns don't add up.
Proponents of the bill need to at least address the following concerns and make revisions to the bill in order to gain widespread grassroots support:
1. The very real possibility that the EAC will become regulatory, either through de facto litigation outcomes, or in much the same way the FEC did: with a single line of text inserted into a completely unrelated congressional act. It will then become an executive agency, reporting to the executive branch of government.
2. The question of crony appointments creating power over the nation's election systems, as shown in GW Bush's recent recess FEC appointment, a stunning example of how a president can use crony appointments to control election-related issues without the benefit of checks and balances for the American people.
3. The concerns and questions that have already been raised by organizations such as ACCURATE, EPIC, and other ordinary citizens like myself, about the composition of the EAC and the non-transparent manner in which the EAC conducts itself and its decision making process.
4. The fact that the bill would enable the institution of yet another privatized election industry in the form of contracted recount firms.
5. The possible subversion -- through assent of potentially corrupt local officials -- and constitutional conflict with federal oversight of state and local elections.
6. The question of how the parameters for audit are exactly defined, given ambiguous language such as shown in the bolded section: "IN GENERAL.""The Election Assistance Commission shall conduct random, unannounced, hand counts of the voter-verified records required to be produced and preserved pursuant to section 301(a)(2) of the Help America Vote Act of 2002 (as amended by section 2) for each general election for Federal office (and, at the option of the State or jurisdiction involved, of elections for State and local office held at the same time as such an election for Federal office) in at least 2 percent of the precincts (or equivalent locations) in each State.
7. The absence of any form of real best management practices and guidelines for conducting hand counts that would account for the various and varied precincts in the nation, and enable orderly procedures for the mandated recounts.
8. The possibility of countless unintended consequences stemming from federal audits, such as chaotic hand count management, or litigation resulting in court-appointed rather than elected officials, as we saw in 2000.
9. The fact that election system traditions, customs, and configurations vary from locale to locale, and a one-size-fits-all imperative from above - the Federal level - will cause chaos. We have seen this with campaign finance and the FEC, with the NVRA, and more recently with HAVA.
One no longer needs to be a conservative to be a federalist. There are many of us progressive federalists, and given the nature of the current administration I would imagine this political ideology has a rightful place in any discussion. The integrity of our republic depends on real checks and balances in its foundational democratic systems and processes.
We, the grassroots, would like to support the Holt bill; it has great promise to heal some of the wounds inflicted with the passage of HAVA. But can not do so until it is revised to appropriately bring it back to its original intent: the re-institution of verifiable elections through the use of real, voter-marked and verifiable paper ballots, and the elimination of black box voting products.
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