EAC Advisory Clears Iowa’s Use of Federal Funds for Fraud Investigation

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[Image courtesy of all-flags-world]

The three new members of the U.S. Election Assistance Commission (EAC) have cleared the State of Iowa’s use of nearly a quarter of a million dollars in Help America Vote Act (HAVA) funds for a voter fraud investigation that began back in 2012. The Associated Press has more:

States are free to use federal grant money intended to improve how elections are run in order to pay for criminal investigations of potential voter fraud, the U.S. Election Assistance Commission has ruled.

The commission’s opinion is a relief to election administrators in Iowa, who will not have to pay back $240,000 in federal money that was used for a contentious voter fraud investigation that ended last year…

Months before the 2012 presidential election, then-Iowa Secretary of State Matt Schultz reached an agreement to pay the salary and expenses of a full-time Iowa Division of Criminal Investigation agent for two years. Schultz, a Republican, asked the agent to investigate “instances of potential criminal activity in the areas of voting, voter registration, election misconduct and election administration.” The investigation led to charges against 10 non-U.S. citizens and 16 ex-felons accused of casting ballots despite not having voting rights.

Not surprisingly, the ruling on the request for guidance – which came in a non-public “tally vote” – was delayed while the EAC seats were vacant:

The federal commission, which oversees HAVA spending, couldn’t decide whether the spending was allowed because it had no members for years. The commission started operating again in January, when three appointees — two Republicans and a Democrat — joined after winning U.S. Senate confirmation, and it has been whittling away at unfinished business.

In a 3-0 decision that wasn’t discussed in public, the members agreed in an Aug. 13 advisory that Iowa’s use of the money was “allowable, allocable and reasonable.” The Help America Vote Act requires states to ensure that voter registration records are accurate and leaves to them “the specific choices on the methods of complying,” the advisory said.

Iowa certified in 2010 that it had met key HAVA requirements, such as maintaining a statewide voter registration database, and therefore could use the money “to carry out other activities to improve the administration of elections for federal office.” The investigator’s services were new to the office and furthered the law’s goal of properly administering voter registration records, the advisory said. Iowa didn’t identify the new expense in its state HAVA plan but didn’t view it as a material change that required an amendment.

Commission spokesman Bryan Whitener said “non-objection matters” before the commission are often decided by tally vote under its rules and not at public meetings. He said he wasn’t aware of other states using HAVA funding for similar investigations.

Critics of the investigations expressed concerns that other states could follow suit:

“It seems like a real stretch,” said state Sen. Tom Courtney, D-Burlington, who asked the commission’s inspector general to investigate the spending nearly three years ago. “But now with this ruling in their pocket, Iowa and other states might say, ‘all right’ ” …

Democrats and civil rights groups called the investigation an attempt to intimidate voters and a waste of money. Courtney also argued that it was an inappropriate use of funding from the Help America Vote Act, which was passed in 2002 to improve elections and has provided more than $3 billion to states. The money has been spent on items such as polling equipment, technology and training.

While I find the ruling curious – just as I did former SoS Schultz’s decision to spend HAVA funds on the investigation – I’m not sure that it will open the floodgates on HAVA-funded fraud investigations nationwide. For one thing, most states have either spent their HAVA funds or have allocated them to specific projects (like California’s VoteCal database) – and Congress has shown no inclination to replenish those federal dollars. Second, states that are concerned enough about voter fraud to launch investigational activity (like Kansas) seem to have no problem finding funds to do it without access to HAVA dollars. I suspect without knowing [WARNING: CONJECTURE AHEAD] that this ruling may have been as much about following existing rules and precedents regarding federal grants (“allowable, allocable and reasonable” being standard language in such cases) – not to mention avoiding a fight with Members of Congress who might support the Iowa program at a time when the EAC is trying to re-establish its value as a federal agency after years in the wilderness.

If nothing else, this finally closes the books on the matter, leaving Iowa’s new Secretary of State Paul Pate free to continue his work on upgrading other areas of the voting experience in the Hawkeye State – and the EAC free to focus on upgrading testing and certification standards for as new generation of voting technology.

Stay tuned.

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