Introduction

The U.S. Election Assistance Commission (EAC) is an independent federal agency that is charged with helping voters participate in the electoral process and election officials improve the administration of elections. It was established by the Help America Vote Act of 2002 (HAVA; P.L. 107-252; 52 U.S.C. §§20901-21145) as part of Congress's response to problems with the administration of the 2000 elections.¹

The EAC—and the legislation that created it—marked something of a shift in the federal approach to election administration. Previous federal election laws had set requirements for the administration of federal elections, but HAVA was the first to back its requirements with substantial support.² The act authorized grant programs for elections and an assistance-oriented elections agency, the EAC.³

There was broad support in Congress during the HAVA debate for the idea of providing some assistance along those lines. Both at the time and since, however, opinions have differed about exactly what role the EAC should play. Members have disagreed about whether the agency should focus solely on assistance or also have regulatory authority, for example, and whether it should be temporary or permanent.

Changes in the election administration landscape and in Congress have brought different aspects of the debate to the forefront at different times. The 112^th through 115^th Congresses saw attempts to terminate the agency, whereas recent developments like foreign efforts to interfere in the 2016 elections and the onset of the Coronavirus Disease 2019 (COVID-19) pandemic in the 2020 election cycle have been cited as new grounds to extend or expand it.⁴

This report provides an overview of the agency in the context of those changes. It starts by describing the EAC's duties and structure, and then summarizes the history of the agency and related legislative activity. The report closes by introducing some considerations that may be of interest to Members who are weighing whether or how to engage with issues related to the EAC or to election administration more broadly.

Notes on Terminology

In this report, "state" is generally intended to include the District of Columbia (DC) and U.S. territories. Exceptions to that general usage are references to "the 50 states," which do not include DC or the territories, and references to "HAVA states," which do not include the Commonwealth of the Northern Mariana Islands (CNMI).⁵

"Election Assistance Commission" and "EAC" are sometimes used to refer to the appointed commission that is part of the agency. To avoid confusion, the report reserves those terms for the agency as a whole and uses "commission" for the appointed commission.

Overview

The highest-profile problems with the administration of the 2000 elections were in Florida—where disputes about the vote count delayed resolution of the presidential race for weeks—but post-election investigations revealed widespread problems with states' conduct of elections.⁹ Those investigations also prompted suggestions about how to avoid similar problems in the future, including proposals to increase federal involvement in elections.¹⁰

Exactly what that involvement should look like was a matter of debate. There was general agreement that it should include some federal assistance to states and localities. Proposals from Members on both sides of the aisle and in both chambers of Congress would have authorized election administration grant programs, for example, and federal guidance about voting systems.¹¹

Members disagreed, however, about other aspects of federal involvement in elections. The disagreements were rooted in part in competing concerns. Some Members worried that certain types of involvement would shift the balance of election administration authority from the states and localities that have traditionally run elections to the federal government.¹² Others were concerned that some states and localities would not—or could not—make necessary changes to their election systems without federal intervention.¹³

Disagreements about the proper role of the federal government in elections played out in at least two debates relevant to the EAC: (1) whether any new federal responsibilities should be assigned to existing entities like the Federal Election Commission's (FEC's) Office of Election Administration (OEA) or an entirely new agency, and (2) whether the new responsibilities should focus solely on supporting states and localities or also include authority to compel them to act.¹⁴

Congress struck a compromise in HAVA by creating a new agency, the EAC, but positioning it as a support agency. As one of the primary architects of HAVA, Representative Robert Ney, noted in the markup of a 2001 version of the act,

[T]he name that we did choose, by the way, for this Commission is not an accident. The purpose of this Commission is to assist State and local governments with their election administration problems, basically taking the attitude we are the government, we are here to help. Its purpose is not to dictate solutions or hand down bureaucratic mandates.¹⁵

That focus on assistance—in combination with other objectives, such as providing for a range of expert input into agency activities and guarding against partisanship—informed the duties and structure of the agency.

Duties

In keeping with its positioning as an assistance agency, the EAC's rulemaking authority is limited. HAVA explicitly restricts the agency's authority to issue rules, regulations, and other requirements for states or localities to regulations about two duties it transferred to the EAC from the FEC: (1) reporting to Congress on the impact of the National Voter Registration Act of 1993 (NVRA; P.L. 103-31; 52 U.S.C. §§20501-20511), and (2) maintaining the federal mail voter registration form required by the NVRA.¹⁶

That limitation does not mean that the agency has no ability to influence state or local action. The EAC can audit its grantees, for example, and specify how issues identified by audits should be addressed.¹⁷ It can revoke certification of voting systems to its voluntary guidelines and accreditation of laboratories to test systems to the guidelines.¹⁸

However, its duties are primarily oriented toward facilitating or incentivizing elections activities rather than compelling them. Those duties, which are designed for input by a range of elections stakeholders, include administering the grant programs and voting system testing and certification program referenced above. They also include issuing voluntary guidance for implementing certain HAVA requirements, conducting elections research and sharing election administration best practices, and establishing a youth voter participation and poll worker recruitment program.

Grant Programs

HAVA authorized the first major federal grant programs for election administration, and Congress has established additional grant programs for certain limited elections-related purposes since. The EAC has been charged with administering or helping administer the funding Congress has provided for most of those grant programs, including funding for

• Meeting election administration requirements. Title III of HAVA set requirements for the administration of federal elections, including for voting systems, provisional voting, voting information, and voter registration.¹⁹ Meeting those requirements involved significant financial investments for many HAVA states, and Congress authorized a requirements payments program primarily to help cover those costs. The Military and Overseas Voter Empowerment (MOVE) Act of 2009, which set new requirements for the voting and registration processes available to military and overseas voters, authorized additional funding for the grant program to help HAVA states meet its requirements.²⁰
• Making general improvements to election administration. The problems with the administration of the 2000 elections varied by state.²¹ HAVA authorized a general improvements grant program to help each HAVA state²² make the improvements to its election administration processes it considered most pressing.²³ Funding under the program was authorized for use in making general improvements to the administration of federal elections and various other specific purposes, including providing voter education and poll worker training, acquiring and updating voting systems, improving the accessibility of polling places, and establishing voter hotlines.²⁴
• Replacing lever and punch card voting systems. The punch card voting systems used by some jurisdictions in 2000 contributed to the problems with Florida's vote count.²⁵ Post-election investigations also identified problems with lever voting machines, such as the potential for levers to jam and the lack of a paper trail that might be used to recover votes cast on a jammed machine.²⁶ Congress authorized a lever and punch card voting system replacement grant program to help HAVA states replace both types of system.
• Conducting election technology research. Issues with election technology, such as the unreliability of lever and punch card voting systems, contributed to the problems with the administration of the 2000 elections. In addition to helping HAVA states replace unreliable systems, Congress authorized funding to help develop better alternatives. It directed the EAC, with assistance from NIST, to oversee a voting technology improvements research grant program for researching improvements to election systems and a voting technology pilot program grant program for testing new voting technologies.²⁷
• Encouraging youth voter participation and facilitating poll worker recruitment. Young people participated in the 2000 elections at lower rates than their older counterparts,²⁸ and some of the problems with the conduct of the 2000 elections were traced to a shortage of qualified poll workers.²⁹ HAVA authorized grant-making under two EAC programs to try to address one or both of those problems: a mock elections grant program to encourage students and their parents to engage with the elections process, and the Help America Vote College Program to encourage students at institutions of higher education to serve as poll workers and election officials to use their services.³⁰ For more on the latter program, see the "Help America Vote College Program" section of this report.
• Improving the collection of election data. As described in the "Research and Best Practices" section of this report, the EAC collects data from state and local election officials after each regular federal general election. Congress found that the data quality and response rates for early iterations of the survey were lower than expected and established an election data collection grant program to help improve data collection for the November 2008 election.³¹

For details of the funding Congress has authorized and appropriated for each of the above purposes to date, see Table 1. For more on elections grant funding in general, see CRS Report R46646, Election Administration: Federal Grant Funding for States and Localities, by Karen L. Shanton; and CRS Report WPD00035, Federal Role in Elections Funding, by Karen L. Shanton.

The EAC's grant programs were not originally designed—and have not historically functioned—as ongoing sources of new elections funding. Congress has returned to some of them on occasion, however, in response to new developments. For example, it has appropriated funding under HAVA's general improvements grant program for recent fiscal years in response to foreign efforts to interfere in the 2016 elections and the onset of the COVID-19 pandemic in the 2020 election cycle.

The EAC also continues to manage some HAVA grant funding appropriated for previous fiscal years. Most of the funding Congress has provided under HAVA's requirements payments program and general improvements grant program has been available to states until expended, so the EAC continues to provide technical assistance and receive spending reports for some of those funds.³² HAVA also authorizes the EAC to audit its grantees and, on a vote of the commission, recipients of other grant funding authorized by the act.³³ For more on those audits, see the "Office of Inspector General (OIG)" section of this report.

Voting System Guidelines, Testing, and Certification

States and localities choose the voting systems used in U.S. elections, but the federal government offers some guidance. The first set of voluntary federal guidelines for voting systems was issued by the FEC in 1990 in response to the increased complexity—and new problems—introduced by use of computerized systems for vote casting and counting.³⁴ The National Association of State Election Directors (NASED), a professional association for state election officials, developed a program to test and qualify voting systems to the FEC's guidelines.³⁵

Following the reports of problems with voting systems in 2000, Congress transferred the FEC's and NASED's responsibilities to the new elections agency it created in HAVA. One of the EAC's statutory advisory bodies is responsible for helping the agency's executive director develop draft Voluntary Voting System Guidelines (VVSG), with technical assistance from NIST.³⁶ The draft VVSG are then made available to the EAC's other two statutory advisory bodies and the public for review and comment before they are submitted to the commissioners for a vote on adoption.³⁷

The EAC's commissioners are also charged with providing for testing and certification of voting systems to the VVSG. With input from NIST, which is responsible for monitoring and providing recommendations about voting system test laboratories (VSTLs), the commission accredits and can revoke accreditation of labs to test systems to the VVSG. It also provides for certification, decertification, and recertification of systems to the guidelines.³⁸

The commission has adopted three versions of the VVSG to date: VVSG 1.0 in 2005, VVSG 1.1 in 2015, and VVSG 2.0 in 2021.³⁹ The most recent iteration of the guidelines is divided into higher-level principles and guidelines and more detailed information voting system vendors and VSTLs can use to guide development and testing of systems to the high-level principles and guidelines.⁴⁰ Vendors who are interested in having voting systems federally certified must comply with certain requirements, such as providing information about their policies and ownership and agreeing to permit visits to their manufacturing facilities and report certain modifications and malfunctions of their systems.⁴¹

Use of voting systems that have been certified to the VVSG is voluntary under federal law. However, states can require federal testing or certification of the voting systems they use, and many have chosen to do so. According to a September 2020 report from the EAC, DC and 37 of the 50 states have made some or all of the federal testing and certification program mandatory under their own state laws.⁴²

Some states have also chosen to require similar testing or certification at the state level of other systems used in elections, such as electronic poll books (e-poll books) used for voter check-in.⁴³ Those nonvoting systems are not covered by the federal testing and certification program, which is limited to voting systems, but the EAC has taken some steps to offer states guidance about them. It launched a partnership with the Center for Internet Security (CIS) in 2020 to pilot a process for testing nonvoting election systems, including e-poll books and election night reporting systems.⁴⁴

Voluntary Guidance

In addition to providing for voluntary federal guidelines for voting systems, HAVA set some requirements voting systems used in federal elections have to meet. Title III of the act requires HAVA states to set uniform standards for what counts as a vote on each type of voting system they use for federal elections. It also requires the voting systems they use in federal elections to satisfy various criteria, including offering voters the opportunity to check and correct their ballots, producing a manually auditable permanent paper record, providing for accessibility to individuals with disabilities and members of language minority groups, and meeting specified error rate standards.⁴⁵

Title III of HAVA also set requirements for other aspects of the administration of federal elections, including provisional voting, voting information, voter identification, and voter registration. Election officials in HAVA states are required to post certain information at the polls and offer certain voters the opportunity to cast a provisional ballot, for example, and HAVA states have to maintain centralized, computerized statewide voter registration databases.⁴⁶

HAVA reserved decisions about exactly how to comply with the new requirements to the HAVA states but directed the EAC to issue voluntary guidance about them.⁴⁷ The guidance was intended to offer more specifics about how to implement the act's general mandates. The EAC's guidance about statewide voter registration databases, for example, indicated that either a "top-down" system, in which a centrally located database is connected to local terminals, or a "bottom-up" system, in which information from locally hosted databases is used to update a central list, is acceptable under the law.⁴⁸

Research and Best Practices

The Federal Election Campaign Act of 1971 (FECA; P.L. 92-225; 52 U.S.C. §§30101-30146) charged the U.S. General Accounting Office (GAO; now known as the U.S. Government Accountability Office) with maintaining a clearinghouse of election administration research.⁴⁹ The 1974 amendment to the act (P.L. 93-443) created the FEC, which inherited the clearinghouse function and assigned it to its OEA.⁵⁰

HAVA transferred the OEA's clearinghouse responsibilities—along with its staff and funding—to the EAC.⁵¹ The EAC has broad authority under the act to conduct elections research and share election administration best practices, and it has used that authority both to collect data of ongoing interest and to address particular developments.⁵² The agency includes a section on state elections policies in its biennial Election Administration and Voting Survey (EAVS),⁵³ for example, and has produced resources to help election officials respond to foreign efforts to interfere in the 2016 elections, elections effects of the COVID-19 pandemic, and a reported increase in threats to election workers during and since 2020.⁵⁴

HAVA also assigned the EAC some specific research projects. It charged the agency with conducting studies of

• military and overseas voting, in consultation with the U.S. Department of Defense (DOD);
• human factor research, in consultation with NIST;
• mail voter registration and, in consultation with the Social Security Administration (SSA), use of Social Security numbers for voter registration or election eligibility or identification purposes;
• electronic voting and the electoral process; and
• free postage for absentee ballots, in consultation with the U.S. Postal Service (USPS).⁵⁵

The EAVS also includes congressionally mandated reporting on voter registration and military and overseas voting, in addition to the EAC-initiated section on state elections policies.⁵⁶

Help America Vote College Program

As noted in the "Grant Programs" section of this report, Congress identified challenges with youth voter participation and poll worker recruitment in the 2000 elections. It responded in part by directing the EAC to establish a program to encourage students at institutions of higher education to serve as poll workers and election officials to use their services.

HAVA authorizes the EAC to conduct various activities as part of that program, including developing materials, sponsoring seminars and workshops, producing advertisements directed at students, and awarding grants. To date, the agency has primarily used funding appropriated for the program for grant-making.⁵⁷

Structure

The EAC consists of an appointed commission, a professional staff led by an executive director and general counsel, an OIG, three statutory advisory bodies, and one agency-created advisory body. Its primary oversight committees are the Committee on House Administration and the Senate Committee on Rules and Administration, and its appropriations are under the jurisdiction of the Financial Services and General Government (FSGG) Subcommittees of the House and Senate Appropriations Committees.⁵⁹

The structure of the EAC, like its duties, reflects its emphasis on assistance.⁶⁰ The agency's advisory bodies are central to its functioning, with opportunities for input into its guidance, planning, and staffing. Voters are represented on one of the advisory bodies, and state officials, local officials, or their representatives make up some or all of the membership of all four.

The EAC was also set up to ensure a range of expert input into agency activities and help guard against partisanship.⁶¹ In addition to voters and state and local officials, for example, the advisory bodies include experts in a range of other fields relevant to election administration, from disability access to science and technology. The membership and selection processes for the commission and some of the advisory bodies, as well as a provision that certain actions require approval by a three-vote quorum of the four commissioners, are also designed for partisan balance.

Commission

The EAC's commission is designed to have four members, each of whom is required to have elections experience or expertise and no more than two of whom may be affiliated with the same political party. Candidates for the commission are recommended by the majority or minority leadership of the House or Senate and appointed by the President subject to the advice and consent of the Senate.⁶²

Figure 1. EAC Organizational Chart (As of FY2023)

Source: CRS, based on EAC, Fiscal Year 2023 Congressional Budget Justification, p. 8, at https://www.eac.gov/sites/default/files/cbj/US_EAC_FY_2023_Congressional_Budget_Justification_508_FINAL.pdf.

HAVA provides for commissioners to be appointed to four-year terms on staggered two-year cycles.⁶³ They may be reappointed to up to one additional term and continue to serve on "holdover" status after their terms expire, pending appointment of a successor. Two commissioners representing different parties are to be chosen by the commission's membership each year to serve one-year terms as chair and vice chair.⁶⁴

Action on activities the commission is authorized by HAVA to conduct requires approval by a three-vote quorum of the commissioners.⁶⁵ That quorum requirement applies to most of the agency's major activities, from updating the VVSG to promulgating regulations for the NVRA-mandated voter registration reports and federal mail voter registration form to appointing the agency's statutory officers.⁶⁶

Professional Staff

The EAC has two statutory officers—an executive director and a general counsel—who are appointed by the commission with input in the case of the executive director from two of the agency's advisory bodies. Both the executive director and the general counsel are appointed to four-year terms and eligible for reappointment.⁶⁷

HAVA authorizes the executive director of the EAC to hire other professional staff (see Figure 1 for an organizational chart of the agency as of FY2023).⁶⁸ As a matter of agency policy, the executive director is also responsible for the day-to-day operations of the EAC, including preparing policy recommendations for consideration by the commissioners, implementing adopted policies, and handling administrative affairs.⁶⁹

The size of the EAC's staff has varied, from the four commissioners and handful of transfers from OEA in FY2004 to 50 full-time equivalent positions (FTEs) in FY2010, about 25 to 30 FTEs between FY2013 and FY2020, and 46 FTEs in FY2021.⁷⁰ The number of FTEs at the agency was capped at 22 in FY2005 and 23 in FY2006.⁷¹ The cap was lifted for FY2007 and, as of this writing, has not been reinstated.⁷²

Advisory Bodies

HAVA provided for three advisory bodies for the EAC: the Board of Advisors, the Standards Board, and the Technical Guidelines Development Committee (TGDC). In 2021, the EAC used its own authority to add a fourth advisory body, the Local Leadership Council (LLC).⁷³

Board of Advisors

The EAC's Board of Advisors is charged with reviewing draft VVSG and voluntary guidance before they are presented to the agency's commissioners for a vote on adoption.⁷⁴ HAVA directs the board to appoint a search committee in the event of a vacancy for executive director of the EAC and the commissioners to consider the candidates the search committee recommends.⁷⁵ The commissioners are also supposed to consult with the board on research, program goals, and long-term planning, and NIST is supposed to consult with it on monitoring and review of VSTLs.⁷⁶

The Board of Advisors was designed by HAVA to have 37 members, but its membership dropped to 35 with the 2016 merger of two of the organizations responsible for appointing its members.⁷⁷ Sixteen members of the board are appointed by organizations that represent state and local officials,⁷⁸ and seven represent federal entities.⁷⁹ Four members are science and technology experts, who are each appointed by the majority or minority leadership of the House or Senate. The remaining eight members of the board represent voters, with two appointed by each of the chairs and ranking members of the EAC's two primary oversight committees. The overall membership of the board is supposed to be bipartisan and geographically representative.⁸⁰

Standards Board

HAVA assigned the Standards Board and its nine-member Executive Board the same duties as the Board of Advisors. Like the Board of Advisors, the full Standards Board is responsible for reviewing draft voluntary guidance and VVSG; appointing a search committee in the event of a vacancy for the executive director; consulting with the commission on research, program goals, and long-term planning; and consulting with NIST on monitoring and review of VSTLs. The Executive Board is charged with reviewing draft VVSG and making recommendations about them to the full board, as well as carrying out any other duties the full board delegates to it.⁸¹

The full Standards Board has 110 members. They include two representatives from each of the 50 states, DC, American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands. Each pair of representatives includes one state election official and one local election official who are not affiliated with the same political party. State election officials are chosen for membership on the board by their state's chief election official, and local officials are selected according to a process overseen by the chief state election official.⁸²

The nine members of the Executive Board are appointed to two-year terms by the full membership of the Standards Board. Executive Board members may serve no more than three consecutive terms, and no more than five Executive Board members may be either state officials, local officials, or members of the same political party.⁸³

Technical Guidelines Development Committee (TGDC)

The 15-member TGDC is charged with helping the executive director of the EAC develop the VVSG.⁸⁴ That has tended to involve working with NIST to draft guidelines for consideration by the other two statutory advisory bodies, the public, and the commission.

The director of NIST serves as chair of the TGDC and, in collaboration with the EAC's commissioners, appoints its other 14 members. Appointees to the TGDC must include an equal number of members of the Board of Advisors, Standards Board, and Access Board; one representative of each of the American National Standards Institute (ANSI) and the Institute of Electrical and Electronics Engineers (IEEE); two representatives of NASED who do not serve on the Board of Advisors or Standards Board and do not share a political party; and other experts in voting system-related science and technology.⁸⁵

Local Leadership Council (LLC)

The LLC was established by the EAC in 2021 to provide input into the agency's work, such as by offering recommendations and sharing experiences and best practices.⁸⁶ A primary motivation for creating the council, according to agency leadership, was to help the EAC build direct relationships with local election officials.⁸⁷

The council consists of two local election officials from each of the 50 states. Where applicable, the members are supposed to be current or former leaders of professional associations for local election officials in their states.⁸⁸

Office of Inspector General (OIG)

The EAC is required to have an OIG under the Inspector General Act of 1978, as amended by HAVA (IG Act; P.L. 95-452; 5 U.S.C. app.).⁸⁹ As noted in the "Grant Programs" section of this report, the EAC's OIG audits its grantees and refers issues identified in audits to agency management for resolution.⁹⁰ In one instance, for example, the OIG determined that a grantee could not document certain grant expenses, and the grantee was required to return some of its grant funds.⁹¹

The EAC's OIG also conducts internal audits and investigations of the agency itself. That includes regular reporting on the EAC's management challenges and compliance with federal laws, such as the Federal Information Security Modernization Act of 2014 (FISMA; P.L. 113-283; 44 U.S.C. §§3551-3559). It also includes audits of the EAC's finances and investigation of complaints about fraud, waste, mismanagement, or abuse at the agency, such as a 2008 investigation of alleged political bias in preparation of an EAC report about voter fraud and intimidation, a 2010 investigation of complaints about the agency's work environment, and a 2015 investigation of reports of disbursement of expired grant funds.⁹²

History

Implementation of the EAC has sometimes deviated in practice from the plan for the agency set out in HAVA. The first commissioners were not appointed on the timeline specified by the act, for example, which contributed to failures to meet other statutory deadlines.

Interpretations of the plan for the agency—and views about whether to change it—have also differed among Members and in response to new developments. Some have seen the EAC as a temporary fix for a short-term problem, for example, while others have viewed it as a permanent fixture in federal elections work. Recent developments in the election administration landscape, such as foreign efforts to interfere in the 2016 elections and the onset of the COVID-19 pandemic in the 2020 election cycle, have suggested potential new functions for the agency.

As a result, the role of the EAC and congressional perspectives on its role have varied over the course of the agency's history, from its initial setup in the wake of the 2000 elections to its participation in the federal response to more recent developments.

Initial Setup

HAVA called for members to be appointed to the EAC's commission by February 2003, but the first four commissioners did not take office until December.⁹³ The act also authorized up to $10 million in operational funding for the agency for each of FY2003 through FY2005, but, with no commissioners in place for FY2003 or the start of FY2004, Congress appropriated significantly less than the authorized ceiling for the first two of those fiscal years (see Table 2 for details).⁹⁴

The delay in appointing commissioners and limited early funding for the agency contributed to the EAC missing statutory deadlines for conducting research and issuing voluntary guidance. Work on the agency's voting system testing and certification program also started later than anticipated.

Those developments had practical implications. As set out in HAVA, the deadlines for the EAC to release voluntary guidance for implementing the act's Title III requirements preceded the deadlines for states to start meeting the requirements.⁹⁵ In theory, that would have enabled states to use the guidance to inform their implementation of the requirements.⁹⁶ In practice, the commissioners took office nearly a month-and-a-half after the first set of guidance was due and less than three weeks before states were supposed to start meeting requirements.⁹⁷

The EAC's voting system testing and certification program is also intended to help inform state and local choices of voting systems. However, states that were planning to use HAVA's lever and punch card voting system replacement grant funding to upgrade their systems after the 2000 elections had to either replace all of their lever and punch card machines by the regular federal general election in November 2004 or return some of the funds.⁹⁸ They could apply for an extension of that deadline to the first election after January 1, 2006—which was ultimately further extended to the first election after November 1, 2010—but VVSG 1.0 was not adopted until December 2005 and the first system was not certified to the guidelines until February 2009.⁹⁹

Efforts to Terminate

As of the beginning of the 112^th Congress, the EAC had distributed most of the grant funding it was authorized by HAVA to administer and completed much of the research the act directed it to conduct. The National Association of Secretaries of State (NASS) had recently renewed a resolution—first adopted in 2005 and subsequently approved again in 2015—that called for disbanding the agency.¹⁰⁰ The authorization of operational funding for the EAC had expired, and the agency's OIG reported ongoing issues with its performance management, information security, work environment, records management, and overhead expenses.¹⁰¹

Those developments were taken by some as evidence that the agency had outlived its usefulness.¹⁰² Members introduced legislation to terminate the EAC in each of the 112^th through 115^th Congresses, and the House Appropriations Committee recommended cutting or eliminating its funding each fiscal year between FY2012 and FY2018.¹⁰³ For details of those funding recommendations, see Table 2 and Table 3.

The Senate also stopped confirming—and some congressional leaders stopped recommending—nominees to the agency's commission.¹⁰⁴ The commission lost the numbers required for a quorum in December 2010 and both of its remaining members in December 2011 (see Figure 2 for details).¹⁰⁵ The Senate, some of whose Members cited opposition to the existence of the agency rather than to individual nominees, did not confirm any new commissioners until December 2014.¹⁰⁶

Without a quorum, the commission could not take official action. One notable consequence was that it could not update the VVSG.¹⁰⁷ The creation of the EAC was partly a response to the FEC's failure to keep its voting system guidelines up to date.¹⁰⁸ However, the lack of a quorum between December 2010 and the swearing in of the newly confirmed commissioners in January 2015 left a nearly decade-long gap between the EAC's adoption of VVSG 1.0 in 2005 and its first update in 2015.¹⁰⁹

Figure 2. Tenures of EAC Commissioners

Sources: CRS, based on data from the EAC and Congress.gov.

Response to Recent Developments

Recent election cycles have seen a number of high-profile developments, including efforts by foreign actors to interfere in the 2016 elections, the emergence of the COVID-19 pandemic in the 2020 election cycle, and an increase in reports of threats to election workers during and after 2020.¹¹⁰

The EAC has played a role in the federal response to each of those developments. Perhaps most prominently, it has administered elections grants. Congress responded to foreign efforts to interfere in the 2016 elections and the onset of the COVID-19 pandemic in part with funding under HAVA's general improvements grant program, and it charged the EAC with administering the funds.¹¹¹

The agency has also provided nonfinancial resources. As noted in the "Structure" section of this report, it helped set up and has continued to participate in the EIS.¹¹² Both in that role and independently, it has offered assistance with securing election systems. It has produced resources to help election officials address the cybersecurity threats highlighted by foreign efforts to interfere in elections, for example, as well as the physical threats posed by the COVID-19 pandemic and both physical and cybersecurity threats to election workers.¹¹³

Supporters of an ongoing role for the EAC have cited its participation in the federal response to recent developments as new grounds to extend or expand it.¹¹⁴ More generally, the focus of debate about the EAC seems to have shifted in the 116^th and 117^th Congresses from whether there is a role for the agency to what that role should be. Proposed and enacted operational funding for the EAC has increased in recent years over the levels provided in earlier Congresses, for example, and proposals to terminate the agency were not reintroduced in the 116^th or 117^th Congresses.

Legislative Activity

One question Congress considered when developing the EAC was whether it should exist as a separate agency at all. That question was also a subject of particular congressional interest in the 112^th through 115^th Congresses, which saw efforts by some Members to disband the agency.

As noted in the "Response to Recent Developments" section of this report, debate about whether there is a role for the EAC seems to have receded in prominence in the 116^th and 117^th Congresses. There have continued to be questions about exactly what the agency's role should be, however, including what types of tasks it should perform and how it should operate.

Members have introduced legislation on each of the above questions since HAVA's enactment in 2002, offering proposals related to (1) whether to maintain an election administration agency and, if so, (2) what the agency should do and (3) how it should do it.

Whether to Maintain an Election Administration Agency

HAVA only authorized operational funding for the new election administration agency it created for three fiscal years. Some Members took that as an indication that the EAC was intended to be temporary. As described in the "Efforts to Terminate" section of this report, they introduced appropriations measures that would have reduced or eliminated the agency's funding and authorizing legislation that would have terminated it and redistributed any of its remaining duties to other agencies.

Other Members have highlighted benefits of ongoing EAC responsibilities like updating the VVSG and conducting the EAVS and argued that its duties could not be performed as effectively—or much more cost-effectively—by other agencies.¹¹⁵ They have provided for ongoing appropriations for the agency and proposed removing potential ambiguity about its status by reauthorizing its operational funding.

Table 4 offers some examples of legislative proposals to terminate or defund the EAC, as well as examples of proposals to extend it.

What the Agency Should Do

The EAC is the only federal agency dedicated to the general administration of elections. As a result, it has been a common choice of agency for proposals to take new federal action on elections issues.

That is especially true of proposals to extend the EAC's existing duties into new issue areas. HAVA charged the EAC with administering grant programs; issuing voluntary guidance for implementing federal requirements; conducting research and sharing best practices; and providing for voluntary voting system guidelines, testing, and certification. Elections legislation involving those types of tasks, such as bills that would authorize development of voluntary guidelines for e-poll books or grant programs for conducting risk-limiting audits, often assigns them to the EAC.

There have also, though, been proposals to assign the agency new types of tasks, including tasks that would expand it beyond its traditional assistance focus. Members have introduced legislation that would direct the agency to set mandatory standards for certain aspects of election administration, for example, or lift the limit on EAC rulemaking in general.¹¹⁶

Table 5 offers some examples from the 117^th Congress of legislative proposals to assign the EAC new responsibilities.

How the Agency Should Function

How agencies are set up can help determine how effective they are at achieving their intended purposes. As a result, some legislative activity on the EAC has focused less on what the agency does and more on how it does it.

Some proposals to change how the EAC works have focused on the structure of the agency. Bills have been introduced to create new EAC advisory bodies or add new members to existing advisory bodies, for example, as well as to prohibit use of operational funding for agency-created advisory bodies other than the LLC.

Other bills would make procedural changes. Members have proposed exempting the EAC from the Paperwork Reduction Act of 1995 (PRA; P.L. 104-13; 44 U.S.C. §§3501-3521) to make it easier for the agency to solicit information from election officials, for example, or providing for concurrent submission of its budget requests to Congress to give Members more insight into its resource needs.¹¹⁷

Table 6 offers some examples from the 117^th Congress of legislative proposals to change the EAC's structure or procedures.

Potential Considerations for Congress

Congress has the authority to conduct oversight of the EAC and to legislate on both the agency and election administration more broadly.¹¹⁸ The history of the EAC and related legislative activity suggest some considerations that may be of interest to Members who are weighing whether or how to take action on those authorities.

• Adding agency expertise. As noted in the "Overview" section of this report, the EAC was designed in part to provide for a range of expert input into agency activities. However, new developments might call for experience or expertise not contemplated by HAVA. Previously introduced legislation suggests various possible ways to provide for new expertise at the agency if Congress chooses to do so, including adding members to the agency's advisory bodies, creating new advisory bodies or agency offices, and directing the agency to hire certain staff or consult with certain stakeholders.¹¹⁹
• Assigning duties. One way to provide for elections-related expertise at the federal level is to add new expertise at the EAC. Another is to draw on other federal agencies. Congress assigned many of the elections responsibilities it established in HAVA to the EAC, but it reserved certain tasks to other agencies or to the EAC in conjunction with other agencies. It charged the U.S. Department of Health and Human Services (HHS) with administering HAVA's disability access grant programs, for example, and NIST with providing the EAC various types of technical assistance. Members contemplating new elections duties that would involve experience or expertise available at agencies other than the EAC might consider whether to take a similar approach or to assert a sole or primary role for the EAC.
• Assessing resource needs. The EAC has been described variously as both overfunded and underfunded.¹²⁰ Developments like the election security threats in recent election cycles have also prompted calls for additional resources for agency operations and for distribution to states and localities through the EAC.¹²¹ Congress might choose to consider how the types and levels of funding available for the EAC, agencies like NIST that support the EAC, and EAC grantees align with current resource needs.¹²² Members who are considering assigning new tasks to the EAC might also consider whether or not to authorize or appropriate additional funding for the new tasks and, if so, whether to provide it as a dedicated funding stream or part of an overall increase in the agency's operational funding. Various tools might be available to help assess resource needs, including studies of appropriate funding levels, concurrent budget submission, and reporting on available resources.¹²³
• Scheduling activity. As noted in the "Initial Setup" section of this report, EAC guidance is intended to inform state and local action. As also noted in that section, however, it has not always served that purpose in practice. Lack of a quorum at the commission and the time required to complete tasks like developing voting system guidelines and manufacturing, testing, and certifying systems to the guidelines have delayed the availability—and reduced the practical utility—of some of the EAC's guidance. Members who are contemplating assigning the EAC new guidance responsibilities might consider whether to try to account for the potential for such delays. One option might be to build in extra time between EAC deadlines and state or local deadlines. Another might be to condition state or local deadlines on EAC action, by setting the deadline for state or local action for a certain number of months or years after the EAC has issued guidance rather than a specific date.
• Considering the quorum requirement. One possible approach to addressing delays in EAC activity caused by lack of a quorum of commissioners is to adjust deadlines. Another might be to try to reduce the potential for quorum-related delays. Some general strategies for doing so might include (1) eliminating the need for a quorum for certain activities, by exempting them from the quorum requirement, and (2) trying to reduce the likelihood of loss of a quorum.¹²⁴ Options for the latter approach might include structural changes to the commission, such as adding or removing a seat, or procedural changes to the way commissioners are seated, such as revising the roles of the President or congressional leadership in the selection process.