This week, the federal Election Assistance Commission met to discuss progress in improving the election process, including the use of federal payments to the states to modernize voting machines, increase poll worker training and recruitment, implement new registration procedures, and ensure that all who arrive at the polling site on election day are able to cast a ballot. Unfortunately, this discussion was irrelevant to the State of New York.

In a move that won't shock New Yorkers given the state's tradition of inertia in Albany, the state legislature there failed to pass federally mandated election reform legislation. As a result, not only are this fall's elections at risk of being even more chaotic than usual in New York; the state is now in danger of forfeiting millions of dollars in federal funds.

In 2002, in response to the 2000 presidential election debacle, Congress passed The Help America Vote Act. This landmark legislation imposed a number of new requirements and authorized almost $4 billion to the states to improve their election systems, including upgrading voting technology, expanding accessibility for the disabled and language minorities, and keeping voter registration rolls more accurate and complete. It also required states this year to offer provisional ballots, have in place an administrative complaint procedure to address problems at the polls, and require voters who register to vote for the first time by mail to present identification.

Twenty-five states have now received their full share of $861 million in federal funds for the year. New York is not one of them. This is because New York has not even taken the minimal step of appropriating a 5% matching fund, required by the Act to receive the money, nor has it passed legislation that would lay out the details of how New York will implement its voting improvements.

What are the possible repercussions?

Loss of tens of millions of federal dollars New York State has already been granted $66 million in money for early election improvements. None of that money can be spent without legislation detailing how it should be used. Moreover, the state is due to receive $235 million in total in federal money by 2005, including $140 million to replace our antiquated lever machines, with the rest to be spent on such items as poll workers, poll worker training and voter education. If the Legislature does not enact implementing legislation this summer, the state may have to forfeit some if not all of that money.

Confusion on Election-Day 2004 One of the most controversial requirements of the Act is that first time voters who register by mail must present identification either when registering or voting. One issue state legislation must address is what types of identification will be accepted by boards of election and poll workers for this purpose. Its failure to clarify that means that county boards, not to mention individual poll workers, may well create varying criteria for what will constitute acceptable identification across the state.

The State Board of Elections has created a list of possible IDs, but legislation is arguably necessary for local boards to impose the identification requirements. In any case, local boards clearly have not gotten the necessary guidance on this matter. The Brennan Center for Justice recently conducted a survey of elections commissioners and found that only 18 out of 45 counties surveyed (40%) correctly responded that only first-time voters who registered by mail are subject to the new identification requirements. A study by the New York Public Interest Research Group found that only 9 of New York's 58 local Boards of Elections (16%) gave substantially complete and correct information to surveyors calling to ask what types of identification would be accepted at the polls. This could have enormous equal protection and voting rights implications, and lead to the wrongful disenfranchisement of many voters.

No Recourse for Grievances Under the Help America Vote Act, voters who feel their rights under the Act have been violated—for example, they were wrongly asked to present identification—are supposed to be able to file a complaint with some administrative body that will conduct a hearing and come to some equitable resolution. With no legislation, New York has no process for voters to have their grievances redressed.

New York Will be Stuck with Lever Machines New York is eligible for millions of dollars to replace its antiquated lever machines—a technology singled out by HAVA for replacement because they are so ineffective. However, the Legislature has not been able to make any decisions as to what types of new machines ought to be considered, how they should be chosen, or what features the machines should have to ensure accessibility. As a result, there is an increasing chance that New York will not be able to meet the 2006 federal deadline for replacing machines, will risk violating the accessibility requirements of the law, and will have to give up the machine replacement money.

Both the Assembly and the Senate passed their own bills for implementing the Help America Vote Act, but could not reconcile them. Senate Majority Leader Joe Bruno says the Senate will reconvene next week to discuss a variety of pending matters. But the Assembly's plans are unknown, and whether they will reach agreement on voting reform is anybody's guess.

Even with one of the most critical elections in history just weeks away, for New Yorkers, the fate of the election system is on indefinite hold.