Three years and another presidential election after the Help America Vote Act (HAVA) was supposed to restore confidence in American elections, we are still haunted by the ever present specter of post-election legal battles. This is largely because we have created a system that plans for resolving disputes after election day, rather than ahead of time.

NYU law professor Samuel Issacharoff, a member of the group behind The Century Foundation working group report Balancing Access and Integrity, made this point at the national convention of the American Constitution Society in Washington, D.C., on July 29. HAVA, he suggested, while originally intended to reduce errors and confusion that would lead to election outcomes being turned over to the courts, may have actually increased that probability.

Long legal disputes following an election do more than threaten the integrity of our elections system; they leave the fate of millions of voters in the hands of lawyers for political parties intent on ensuring a win for their candidate, rather than the fairest outcome. Indeed, letting the "foxes guard the henhouse" seems like an absurd way to police a system that is supposed to resolve controversies in the best interest of the voter, but is our thinking about election reform really doing much to change that state of affairs?

The problem to some degree stems from HAVA's new requirement that all states give those voters denied a regular ballot, for whatever reason, a provisional ballot. The requirement, while an important failsafe measure, has the potential to create a number of ballots (1.6 million nationally in 2004, according to electionline.org) that must be verified and judged after the election. While many of these of these ballots are verified and counted without incident (1.1 million ultimately counted nationally in 2004), other, more questionable ballots, can lead to protracted legal battles in the case of a very close election. The problem is that HAVA, while requiring states to provide provisional ballots to voters who do not appear on the registration list, is vague about what the standards for counting provisional ballots should be.

But clear counting standards are only half the battle. As Professor Issacharoff argued, our paradigm for election reform must shift from anticipating that disputes will be resolved post-election to a focus on reducing as much as possible the opportunities for these disputes to arise before the election. That puts the onus on states to ensure the registration processes they have in place before election day are geared toward creating the most accurate registration list possible.

Yet HAVA is not much help in this arena, as its mandates related to voter registration stop short of prescribing specific measures to correct registration errors or define what constitutes a valid registration. While it is important that states have leeway to design their own systems, it is critical that they exceed HAVA's requirements and set down clear rules and procedures to improve the reliability of their registration processes.

As outlined in the working group report mentioned above, some of the key components of a robust registration process include:

• An easy to follow registration form and clear standards for what constitutes proper completion of the form.
  
  
• Numerous opportunities for a voter to confirm his or her registration status, and procedures whereby election officials notify voters of whether their registration needs to be corrected.
  
  
• A process for evaluating challenges to new registrations that sets the bar for a valid challenge high and leaves the challenged voter ample time to defend his or her registration.
  
  
• Clear rules for processing registrations submitted by third party registration groups and a way for voters who register through these channels to check up on their registration.
  
  
• A deadline well in advance of election day by which states must complete their routine purges of the voter rolls with notification for purged voters and opportunities for those voters to challenge the removal of their names.

While improvements in registration procedures will not entirely eliminate the need for provisional ballots, and in some cases, the need to settle questions about them in court, states should be able to reduce greatly the number or provisional ballots in play in any given election. Starting with a reliable registration process that settles issues before the polls open, not after they've closed, is a must: fewer voters will face the prospect of not having their ballot counted, and states can ensure public confidence in elections.

Alex Baker is web content manager at The Century Foundation.