Prioritizing People in Election Infrastructure Procurement

It’s no secret, nor surprise, that states administer their elections independently from one another. It is one of the cornerstones of our federalist system, emblazoned in Article 1, Section 4 of the U.S. Constitution.

This has never meant that Congress has no say in the process; Congress has participated in the state administration of elections for decades. In 2002, President Bush signed into law the Help America Vote Act, which has utilized hundreds of millions of dollars in grants to states over the years to modernize voting equipment, protect delicate systems from evolving cybersecurity threats, and adjust election practices to reflect the COVID-19 pandemic, among other things.

Through the conditioning of these grants, Congress has the power and existing framework to ensure a previously untouched aspect of election administration, the procurement of election infrastructure, can be greatly improved.

Existing state procurement processes for election infrastructure are hyper-decentralized and disjointed. Unlike federal procurements, which all follow Federal Acquisition Regulations, or specific agency supplements, states are the proverbial wild west. Their practices and rules for procurements range from incredibly robust, such as with Colorado, or lacking in any substance or transparency, such as Arkansas (both of which are discussed at length in my recently published Note in the Public Contract Law Journal (paywall apologies 🙄) by the American Bar Association).

In multiple states, investigations have found that wasteful spending, conflicts of interest, and other issues otherwise addressed directly by federal regulations, were prevalent in procurements for election infrastructure.

By conditioning subsequent grant money through HAVA, requiring states take steps such as utilizing an intersectional panel of source selection personnel (agency experts that make recommendations on procurement decisions to contracting officers) that includes voting rights experts, cybersecurity experts, and other stakeholders, before the EAC disburses grant money, federal policy interests in protecting voting rights and procurement integrity can stand at the forefront.

Ensuring procurements are built on a foundation of consideration for voting rights and election security, as opposed to awarding a contract for voting machines to the lowest bidder, will no doubt be a significant contribution towards mending public trust in elections, and improve the process writ large.

My article (aka “Note”), Prioritizing the People in the Procurement of Election Infrastructure (alliteration not entirely intended), was written and published as a part of my membership in the ABA’s Public Contract Law Journal, and combined my years of scholarship at the OSET Institute with my current concentration in procurement law at the George Washington University Law School.

The abstract to the Note reads as follows:

The continuous and successful holding of elections stands as one of the foundational pillars of American democracy. In the two decades since the passage of the Help America Vote Act (HAVA), federal, state, and local actors have worked in tandem to improve election administration, and, through funding provided by Congress to the U.S. Election Assistance Commission (EAC), states have been given the means to implement federal best practices. 

However, there exists a glaring gap wherein many states have diverged from both federal best practices and the behavior of other states — the procurement of election infrastructure such as ballots, voting machines, and tabulators. The procurement processes of some states impose inefficiencies or otherwise negatively impact the administration of elections, while the processes present in others can much more effectively facilitate the resolution of these issues. These processes can have a direct impact on voting rights and the security of election administration. Congress should create a federally implemented procurement standard within HAVA that states must meet in order to receive additional EAC funding; by doing so, the interests of all American voters may be protected at the highest level.

For the benefit of our readers who may not be members of the American Bar Association but are interested in this paper, as author, I offer the actual Note for download here (if you missed the embedded link above 🤓)