Did the 2004 Help America Vote Act require each voter to verify a printed paper record of their ballot?

Plain-English summary

A South Carolina legislator asked whether the Help America Vote Act required voting machines to produce a paper record that each voter could see and verify. The Attorney General answered that the 2004 federal Act required a permanent paper record with manual audit capacity for recounts, along with an opportunity to review and correct a vote before that record was produced. It did not require voter verification of the paper record itself or a receipt the voter could keep. The office based that distinction on the statute's sequence and the absence of an express voter-verification requirement.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the Act require a paper record for a manual recount?
A: The AG said yes. It treated the permanent paper record as the official record for a recount of federal-office votes.

Q: Did a voter have to inspect the printed record after it was produced?
A: The AG said no. The statute required a chance to review and correct the ballot before producing the permanent paper record.

Q: Did the 2004 Act require a take-home voting receipt?
A: No. The letter said the Act required neither a voter receipt nor a voter-verified paper trail.

Background and statutory framework

The opinion discussed the audit-capacity language in 42 U.S.C. § 15481, a contrary analysis supplied by former Federal Election Commission chairman Darryl Wold, and proposed federal amendments that would expressly require voter verification. Its conclusion concerned the Act as enacted in 2004. It also described federal and state complaint mechanisms then available for alleged Title III violations.

Citations

• 42 U.S.C. § 15481

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-4-2004/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04aug-4-Neal.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsn:R.
ATTOR~EY GE;";ERAL

August 4,·2004

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The Honorable Joseph H. Neal
Member, House of Representativ~s
P. 0. Box 5
Hopkins, South Carolina 29061
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Dear Representative Neal:
You seek an opinion concerning the mandate ofthe federal Help America Vote Act (HA VA) which enumerates certain requirements for future voting syst~ms. Specifically, you wish to know "whether Title Ill, Section 15481 , (a)(2)(B) ofthe HA VA Act requires that all voting machines must produce a paper record of the vqte cast by each voter ~hat has been seen and verified by the voter." It is your "belief ~hat the .lack of a contemporaneous paper record of votes cast .YOuld make the HA VA requirement for a 'manual audit capacity' meaningless ... ." In support ofthis conclusion, you have attached a copy of a legal analysis by Darryl W@ld, entitled "The HAVA Requirement for a Verified Paper Record."

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By way of background, you state the following:
Title IV of the HA VA Act gives citizens the right to seek injunctive relief if they believe that' any section of Title ill of the act has been violated. The Election Commissions rush to spend over $48 million in HA VA funding is fraught with problems that underscore the need for a verifiable paper ballot. The Commission is'c'onsidering bids ofaround $30 million to purchase machines without a paper receipt capacity, claiming they would cost too much. l question the need for nearly $ 18 million to be held out for training.

It is possible that in the next few years there will be federal or state legislation (already passed in .a number of states and pending in the US Congress) that will require voter verifiable paper ballots. I fear that without your intervention, our state will have bought a pig in a poke and have to pay the difference to comply with the new law.

If the state uses its purchasing power wisely, we can acquire the paper trial before it is required, for significantly less than the cost of a retrofit. The considerations go beyond a violation of HAVA to why the Election Commission is

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The Honorable Joseph H. Neal
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On behalf of myself, my constituents and all the citizens of South Carolina,

I ask that you be our attorney in this matter. Our democracy depends on the citizens' belief that their votes count.

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Law I Analysis

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It is our opinion that HA VA requires that voting systems produce a permanent paper record with a manual audit capacity to enable election officials to conduct fair and accurate recounts. However, the Act does not require that such paper trail be seen and verified by the voter after it is produced. The Help America Vote Act (HAYA) was enacted by Congress and signed into law on October 29, 2002 "in response to the problems which arose fro.m the last presidential election." Sequoia Votin'g Systems. Inc. v. Ohio Secretary of State, 125 Ohio Misc.2d 7, 796 N.E.2d 598, 600 (2003). Codified at 42 U.S.C. 15301 et seq. (P.L. 107-252), HAY A's stated purpose is to "create and establish a federally funded program to facilitate the replacement of punch-card voting systems with a more accurate, secure and user-friendly electronic voting system. Id. The Act has been described as requiring "major changes," promising federal funding "to accomplish these sweeping reforms." Heckert, "Major Legal Changes are Underway for Federal Elections," 27-Feb. Wyo. Law. 32 (February, 2004). The design of such changes are "to reduce the 1ikelihood of voter fraud while promoting greater voter participation, certainty that all legal votes.are counted, and confidence in the election process." Id.

A part of the HA VA deals specifically with "Uniform and Nondiscriminatory Election Technology and Administration Requirements." These requirements are set forth in Part A of Subsection III of Chapter 146 of Title 42 and are codified as 42 U.S.C. § 15481. Pursuant to this portion of the Act, for example, a voting system for a federal office must permit the voter to verify that his or her vote is cast and counted; provide the voter the opportunity to change the ballot or
· correct an error; and the system must notify the voter ifhe or she has case multiple votes for a single office and provide the voter an opportunity to correct the ballot before the vote is cast and counted. 42 U.S.C. § 15481 (2) specifically provides for the "audit capacity"of a voting system. Such provision reads as follows: (2) Audit capacity (A) In general The voting system shall produce a record with an audit capacity for such system. (B) Manual audit capacity (i) The voting system shall produce a permanent paper record with a manual audit capacity for such system. (ii) The voting system shall provide the voter with an opportunity to change the ballot or correct any error before the permanent paper record is produced.

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The Honorable Joseph H. Nfal
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August 4, 2004

(iii)

(emphasis added).
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The paper record produced under subparagraph (A) shall be available as an official record for any recount conducted with respect to any election in which the system is used.
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Several principles of statutory construCtion which have·been applied by the federal courts in construing Acts of Congress are pertinent to your inquiry. First and foremost, it is well recognized that "[ s]tatutory construction must begin with the language employed by Congress and the · assumption that the ordinary meaning ofthat language accurately expresses the legislative purpose." Park 'N Fly. Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189 (1985). In interpreting a statute, "[i]fthe statutory terms are unam1biguous ... review generally ends an.d.the statute is construed according to the plain meaning of the words." Greenery Rehab. Group v. Hammon, 150 F .3d 226, 231 (2d Cir. 1998). Unless otherwise defined, words used in a statute will be interpreted according to their ordinary, contemporary, common meaning. Perrin v. United States, 444 U.S. 37, 42 .(1979). However, the plain meaning rule should not be applied to produce a result which is inconsistent with the policies underlying the statute's passage. Bailey v. USX Corp., 850 F .2d 1506, 1509 (11th Cir. 1988). A remedial statute must thus be inteq)reted liberally to effectuate the purp~se of enactment. Cody v. Cmty. Loan Corp. of Richland County, 606 F.2d 499, 505 (5th Cir. 1979). ·

' "expressio unius est exclusio alterius"
Moreover, the.well-recognized rule of construction
also serves as a guide in construing the relevant statute. See, Rosmer v. Pfizer. Inc., 272 F.3d 243 (4th Cir. 2001). This rule acknowledges that Congress is fully cognizant as to how to make a statute reach more broadly if it so desires; when it does not, such omission or limitation is deemed to indicate such broad reach was not intended. In other words, this "expressio" rule of construction "instructs that where a law expressly describes a particular situation to which it shall apply, what was omitted or excluded was inte.nded to be omitted or excluded." Reyes - Gaona v. N.C. Growers
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Assn., 250 F.3d 861 (41h Cir. 2001).
With this general background in mind, we turn now to the interpretation of HA VA itself. One scholar has summarized Title III of HA VA as follows:
[a]rguably the most important provisions of the Help America Vote Act are in Title III, which specifies uniform election technology and administration requirement for voting systems used for federal elections .... To comply with Title III [by January 2006], a voting system must enable the voter to review his or her vote selection before the ballot is cast and counted and allow the voter. if necessary. to change or correct his or her vote .... In addition, voting equipment must alert voters of over votes - ballots with more than one choice of candidate for a single office .... and permit voters to correct such mistakes .... Each voting system must comply with error rates established by the FEC [Federal Election Commission] .... Also the new voting equipment must produce a "permanent paper record" with a manual audit

The Honorable Joseph H. Neal
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August 4, 2004

capacity,. that will ser!e as the official record for any recount conducted (emphasis. added). Kim; "Help ~merica Vote Act," 40 Harvard Journal ·on Legislation, 579, 590 (Summer, 2003). This scholarly article also comments upon the Act's enforcement mechanism for a violation of Title III I of HA VA:

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[i]n implementing the Act's Title III provisions, states and localities have discretion to choose how they will implement them .... If state and local authorities fail to comply with voting system standards, provisional voting rules, statewide voter · registration list requirements, and procedures for registering by t'nail, the Attorney General can bring a civil action against the state or local jurisdiction in federal district court for declaratory and injunctive relief to compel violators to comply .... In addition, states receiving federal funds under the Help America Act must establish state-based administrative complaint procedures that can be used by people who feel that there has been a violation of Title III .... When a complaint is appropriately· lodged, there must be a hearing on the record and the state must provide an appropriate remedy .... As there is no private right of action, ... the Department of Justice and state officials must be vigilant in helping to ensure that states and local governments comply with Title Ill. Id., at 593. Following HA VA's enactment in 2002, a number of Senators and Congressmen introduced legislation because they did not believe HAVA went far enough. The concern of these lawmakers is that HA VA, as presently written, does not mandate a voter verifiable paper trail. On February 2, 2004 Senator Barbara Boxer of California introduced the Secure and Verifiable Electronic Voting
·Act of 2004 (SA VE). Her comments on the floor of the Senate are particularly instructive:
[t]he 2000 presidential election exposed a number of serious problems with the accuracy and fairness of elections procedures in this country, as well as the reliability of certain types of voting technology. As a result of these irregularities, many eligible voters were effectively disenfranchised and thus deprived of one of their most fundamental rights. This is not acceptable in a democracy such as ours .... In 2002, Congress passed the Help America Vote Act (HA VA). This important legislation sets Federal minimum standards for voting systems, including
·requiring that the equipment used is reliable, accurate, and accessible to all. It encourages the use of direct recording electronic voting systems to replace the outdated punch card and lever machines. It also requires that voting systems provide voters the opportunity to correct errors and that they produce a permanent record with a manual audit capacity.

The Honorable Josepli H. Neal
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August 4, 2004

However, HA VA does not go far enough ....

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My bill, the Secure and Venfiable Electronic Voti~g Act - the SAVE Voting Act would require.that a voter-verifiable paper trail for each vote cast be in place for the November 2004' elections, What that means is this: after an individual votes, he or she will have the opportunity to review the vote on a piece of paper, before it becomes part of th¢ official record. If there is a discrepancy, the voter will have the opportunity to change his or her vote before it is recorded in the official record. This paper record will then be the official permanent record used for any recount or verification. 150 Cong. Record S 37'-03, S 374. Likewise, Congressman Rush Holt of New Jersey has reintroduced H.R .. 2239, known commonly as The Voter Confidence and Increased Accessibility Act of2004. Like Senator Boxer, Congressman Holt's concern is that HA VA does not presently require a voter-verified paper trail, and it is the purpose of his legislation to require one. In his words, '

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HAV A requires·voting machines to produce a "permanent paper record with a manual audit capacity," but his provision fails to guarantee anything other than a print-out of whatever the machine records, including the so-called "ballot image." Though it allows the voter to verify his or her vote before it is finally cast, this verification happens before the permanen't record is produced. In other words, while HA VA requires a paper trial, the actual paper record itself is not voter-verified.· As a result, the voters would never know - and election officials could never determine

• whether a faulty machine erroneously recorded the voter's intent on the actual
  paper record. HR 2239 would require that voters be able to verify the actual paper record after it is printed.

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Congressman Rush Hdlt'Website,http://www.holt.house.gov/display2.cfm?id=7850&type=Home. Congressman Holt indicates his Bill does not make the voter-verifiable paper trail a "receipt" and thus "the records cannot leave with the voters." Thus, he argues, his legislation does not enable such paper to "be used to sell votes or intimidate voters." Id. Others have similarly interpreted HA VA as requiring a paper trail, but not one which is voterverified. See, Website ofverifiedvoting.org ["In the rush to pass this new Act (HA VA) some key elements were left out, such as a 'voter verifiable paper receipt'. The newest Act, introduced by Representative Rush Holt, hopes to update the original HAVA Act with specific solutions to the question of voter verified paper receipts and other obvious discrepancies."] Sostek, "No Soft Touch," (May, 2004) from Governing's May, 2004 issue and found on the website of Governing.com. ["A few states have seen bills introduced in their legislatures to require papers trials, but none has passed thus far. An amendment to HA VA is also pending in Congress to require paper trails nationwide. That bill has attracted the support of 128 co-sponsors. The article adds that "It is not entirely clear

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The Honorable' Joseph H .. Neal
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whether parter would provide an additional layer of s,ecurity. While a paper receipt would convince voters that''th~ machine did record their vote as cast, that paper might be more vulnerable to mariipulation than electronic machines."]; Weinstein, "Push J'. or Voting Changes May Not Cure All Ills/' Wall Street Journal, April 22, 2004, found on Fair Elections.Us website [notes that
·Congressio~al efforts are underway to am~nd HA VA to requite voter-verifiable paper trails]; Cindy Parker,"New Machines Make Voting Fairer for Disabled," The State, July 27, 2004 ["An additional requirement that new voting systems produce a ballot receipt for each voter ... would appear to be both beyond the mandate of the federal law (HAVA) and vety expensive."]; "Help America Vote
. Act - A Summary," found on New York Public Interest Group website at http://www.nypirg.org/ goodgov/hava/havadescrip.html ["a permanent paper record with a manual audit capacity available as official record for recounts (which is not required to be voter-verifiable"]; "Questions and Answers on Direct Recording Electronic Voting Systems,~' L(!ague, of Women Voters website http://www./wv.org ["If the voter is given a receipt; that shows how he or she voted, then vote buying schemes can be very effective and voter intimidation can. ensue."] . You have submitted a legal analysis for our review, authored by Darryl R. Wold; former Chairman of the Federal Election Commission. This analysis is entitled "The HAVA Requirement for the Voter Verified Paper Record." Mr. Wold's paper concludes that HAVA "requires that any voting system used is an election for Federal office must produce a paper record of the vote cast by each voter that has been seen and verified by the voters." He argues that "[t]aken together," the provisions of§ 15481 "make it apparent that HA VA requires a paper record that is seen, verified and turned in by the voter." In Mr. Wold's view,
[a] paper record consisting solely of ballots printed by the computer after the closing of the polls - and therefore never seen by the voters would mean that a
· manual audit or recount would simply amount to reviewing what was stored in the computer. The audit or recount could not manually verify that the computer had accurately recorded the voter's intent, or hand accurately stored that information, or had accurately printed out that information. Both an audit and a recount, therefore, would miss the key element of the system - whether the voter's intention had been accurately recorded.

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While Mr. Wold's interpretation may possess a certain appeal, it is clear that his analysis "implies" the requirement of a voter-verifiable paper trail. However, as Representative Holt has stated, the reason he introduced H.R. 2239 is that the present version of HA VA "allows the voter to verify his or vote before it is finally cast" and "this verification happens before the permanent record is produced." Holt.Website, supra. The express mention of this requirement that the voter be allowed to verify his or vote before the paper record is produced, and the omission of any express voter-verified paper record makes it extremely difficult to "imply such a requirement, as Mr. Wold does. The canon of construction expressio unius est exclusio alterius clearly supports our conclusion. The fact that a number of bills have been introduced and are now pending which would

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The Honorable Joseph H. Neal
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aqiend HA VA so as to require a voter-verifiable paper trail, as well as the virtually consistent interpretations, referenced above, which conclude that HA VA does not presently require a voterverified paper trail, also strongly reinforces oilr conclusion.
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Conclusion

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Title III of the Help·America Vote Act bf 2002 mandates that by January 2006, all voting systems used m elections for federal offices must comply with certain mandatory . requirements.

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Among these requirements are that new voting equipment must produce a "permanent paper record" which possesses a "manual audit capacity" which will serve as the official paper record for any recount which may be necessary. This' permanent paper record must be an exact reproduction of each voter's vote so that if a recount must be conducted, the ballots, as cast, may be counted accurately and fairly.

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In addition, Title III requires that the voter must be given the opportunity to .review his or her vote selection before the'ballot is cast and counted and to "change the ballot or correct any record before the perm<lllent paper record is produced."

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Title III also requires that the system must advis~ voters of over votes - in order to make a correction if a voter has made more than one choice of candidate for a single office. '

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However, under no reasonable construction of Title III of HA VA, as presently enacted, is a so-called "receipt" for the voter's review and verification required by the Act. As noted, the Act mandates that the voter must be given "an opportunity to change the ballot or correct any record before the permanent record is produced." (emphasis added) No voter verification of the permanent paper record itself is mentioned in the Act. While some persons have attempted to construe the Act as "implying" a voterverified paper record, most have read the legislation consistent with its literal language as neither requiring a voter-verified paper record deposited with election officials, or as requiring a voter "receipt" which the voter might keep. This construction is accurately reflected in a number of Congressional efforts to amend HA VA so as to require such a voterverified paper trail.

In short, as presently enacted, HA VA does not require a voter verified paper record or a voter "receipt." The express requirement in the Act that the voter be given the opportunity to correct his or her vote before the permanent paper record is produced, is a strong indication that voter verification of the paper trail was not intended by Congress., ("Expressio unius est exclusio alterius.")

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The Honorable Joseph H. Neal
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A voter-verified paper 'trail would create numerous legal and practical problems and such tho~y .is~~es may have been one major reason Congress did not enact this requirement as part of the present Act. Among the legal problems which could be encountered by a requirement of a voter receipt or a voter-verified paper trail are possible voter fraud and intimidation. As noted above, the League of Women Voters has identified these potential problems. In addition, possible compromise of the constitutional right to a secret ballot is also a major potential problem accompanying a voter-verified paper trail. See, Art. II, § 10 of the South Carolina Constitution. In addition, many have noted the likelihood that a voterverified paper trail would create long delays and impose additional costs upon the voting process.

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In terms of mechanisms for enforcement of any alleged violation of Title III, the Act requires that such must be done by the United States Attorney General. 42 U.S.C. § 1551 provides that "[t]he Attorney General may bring a civil action against any state or jurisdiction in an appropriate United States District Court for such declaratory and injunctive relief ... as may be necessary to carry out the uniform and nondiscriminatory election technology and administration requirements under Sections 15481 ... of this title." This provision references the United States Attorney General only.

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In addition, the Act also provides that states receiving federal funding under the Act must establish state-based administrative complaint procedures for those who believe there has been a violation of Title III. Upon a complaint having been filed, there must be a hearing on the record and the state must provide an appropriate remedy. The state must make a final decision on the complaint within 90 days from the date of filing unless the complainant agrees to a longer period of time. If the state finds no merit to the complaint, it must dismiss it and publish the reasons for its conclusion. See,§ 402(a) of the Act. 8.

In construing HA VA or any other Act, we cannot infer a requirement which Gongress itself omitted. By the statute's express terms, the voter is given the opportunity to correct his or her ballot "before the permanent paper record is produced." While HA VA clearly requires a permanent paper trail in order to conduct fair and accurate recounts, the Act does not require a voter "receipt" or a voter-verified paper trail. Yours very truly,

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Henry McMaster
HM/an