These FAQs will be updated as EAC receives additional questions and will be posted on the EAC website.

 

Additional FAQs for CARES and HAVA Questions July 2020
Additional FAQs for CARES and HAVA Questions July 2020

Yes, but the HAVA grant cannot support the entire cost. The expenditure must meet the allocable criteria following 2 CFR 200.404. A cost is allocable to a grant for the portion that it benefits the federal grant. If the upgrades to the system are being used to upgrade a connected countywide system as a whole and not exclusively for the purpose of improving the administration of federal elections, only the percentage of costs associated with the elections can be charged to the HAVA grant. You should ensure that the county establishes a reasonable method for allocating the costs based on the benefits to the county overall and not just the election unit.

Hiring permanent staff is an allowable cost.  You would need to build that cost into your budget for the future after the HAVA grant ends.  Also, keep in mind that the expenditure must meet the allocable criteria following 2 CFR 200.404.  If the staff person will have duties beyond overseeing activities under the HAVA grant, the timesheet must allocate only the portion of time spent on election security and HAVA activities to the grant.

You can follow whatever state process you set up to provide the funds to the counties.   You need to ensure that local jurisdictions maintain supporting documentation for the expenditures and that you conduct a reconciliation at the end to identify unexpended funds for return to the state or reallocation.

Under 2 CFR 200, computers are considered supplies, not equipment, unless the per unit cost is over $5,000 or the state threshold, if lessor.  There are no specific requirements for disposal of supplies.  Therefore, you can dispose of them following your own procedures or any procedures the state requires.  However, if you sell the computers, the funds you receive are considered program income under the grant and must be spent on activities allowable under the grant.

All purchases of vehicles require prior approval from EAC and states must always contact EAC before purchases.  In approving the purchase, EAC will consider whether leasing the vehicle is a more reasonable approach.  States must ensure proper allocability of the cost.  A vehicle is an equipment asset that can be used in future years and for other purposes.  Therefore, the costs cannot be allocated entirely to the CARES Act grant. 

HAVA funds can only be used for costs incurred in a federal election.  If there are no candidates for federal office on the ballot, they cannot use HAVA funds to cover any expenditures.

EAC has determined that, because the funds are available to the states and sub-recipients for less than a year, you don't have to place the funds in an interest-bearing account based on 2 CFR § 200.306.  Of course, counties are free to put the funds into an interest-bearing account and the normal rules apply.  Any interest earned must be spent on grant-funded activities.

Yes, you can expend the funds to educate voters about changes in voting processes that result from the pandemic, but you cannot use the funds merely for Get-Out-the-Vote campaigns or to encourage voting.  You cannot use the funds to print voter registrations forms as this is a routine activity for the state.  Those forms should be readily available already.  The funds can be spent on public service announcements to educate voters about options to register to vote and changes to the process due to the pandemic.  You need to be clear in any announcement that you are providing updated information about voting and/or voter registration procedures in response to the pandemic.

Yes, you can use HAVA funds to provide masks for voters and it does not have to be a requirement that applies across the state. 

The direct cost allocation principles described in 2 CFR § 200.405 apply.  “If a cost benefits two or more projects or activities in proportions that can be determined without undue effort or cost, the cost must be allocated to the projects based on the proportional benefit. If a cost benefits two or more projects or activities in proportions that cannot be determined because of the interrelationship of the work involved, then … the costs may be allocated or transferred to benefitted projects on any reasonable documented basis.”

You should allocate the costs in proportions to the activities if the allocation can be determined without undue effort or cost.  If you can't determine the proportions because of the interrelationship of the work involved, you can allocate or transfer the costs on any reasonable basis.   The items you are talking about have specific uses that are only beneficial when holding an election during a public health emergency and probably would not be used during normal voting conditions.   It may be very difficult or impossible to determine cost allocation between the federal elections this year and hypothetical future needs that will be conditioned on the public health situation next year.  In such a case, the cost can be allocated to the grant on a reasonably documented basis, and the items can be used as needed in future non-federal elections. However, if allocation between federal and non-federal elections can be determined without undue effort or cost, it must be done (e.g., purchase of ballot printing equipment to handle a need for increased demand of mail ballots would likely have determinable benefits to future non-federal elections).

Yes, as long as the original purchase quantity was reasonable at the time for the federal election, following 2 CFR § 200.404. “A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost.” 

HAVA Funds

2020 HAVA Security Funds

HAVA Funds

2020 HAVA Security Funds

The Consolidated Appropriations Act of 2020 provides $425 million to the U.S. Election Assistance Commission (EAC), as authorized under Title I Section 101 of the Help America Vote Act (HAVA) of 2002 (P.L. 107-252), to make grant payments to states using the voting age population formula described in Sections 101 of HAVA. A chart showing how much each state is being awarded can be found on the EAC website here

Awards will be made to the entities eligible to receive federal assistance under Title I of HAVA, which includes the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands and the Commonwealth of the Northern Mariana Islands (herein referred to as “the states”). The states may re-grant/distribute funds to local election districts/offices at their discretion. 

Even with a $425 million appropriation, some states would receive under $3,000,000 based on the formula required under the law. As required, EAC ensures all states receive at least the minimum by a proportional re-distribution from large states to those below the minimum.

The funds are available as formula, non-competitive grants. Similar to the 2018 process, states will be asked to submit a 2-3 page narrative overview of activities to be supported with the funds and a line item budget within about 90 days of receiving the Notice of Grant Award. Detailed guidance on development of the plans and budgets will be forthcoming and will include the deadline for submission of the narrative and budget. Note that the awards will be issued and funds available prior to receipt of the plan overview to expedite and support any needed expenditures ahead of the 2020 Elections. 

States are required to match 20 percent of the amount awarded and secure that amount within two years of receiving federal funds. They then have the full five years of the budget period to expend all of their match funds. States may either deposit matching funds in their state election accounts or track eligible funds/activities from their state and local general operating budgets to meet the match obligations. State and local funds used for match must be different from funds used to meet Maintenance of Effort or state match associated with HAVA Requirement Payments or the 2018 HAVA grants. American Samoa, Guam, the Northern Mariana Islands and the U.S. Virgin Islands are exempt from the match requirement. 

The Consolidated Appropriations Act of 2020 authorizes and appropriates the federal funds, titled “Election Security Grants” in the Act, and provides $425,000,000 to the Election Assistance Commission “to make payments to states for activities to improve the administration of elections for Federal office, including to enhance election technology and make election security improvements, as authorized under sections 101, 103, and 104 of [HAVA].” 

The accompanying Congressional joint explanatory statement states, “Consistent with the requirements of HAVA, states may use this funding to: replace voting equipment 

that only records a voter's intent electronically with equipment that utilizes a voter-verified paper record; implement a post-election audit system that provides a high-level of confidence in the accuracy of the final vote tally; upgrade election-related computer systems to address cyber vulnerabilities identified through [Department of Homeland Security] or similar scans or assessments of existing election systems; facilitate cybersecurity training for the state chief election official's office and local election officials; implement established cybersecurity best practices for election systems; and fund other activities that will improve the security of elections for Federal office.” 

Consistent with provisions in HAVA Section 101, states have discretion upon expenditures within general categories. The use categories described in the Congressional joint explanatory statement are consistent with aspects of Section 101(b)(1)(A), (B), (D), and (F), among other potential uses. The EAC can answer specific questions about how the money may be utilized, and will be capturing questions from states and sharing the answers in updated versions of this FAQ document. 

The EAC is committed to making funds available as soon as feasibly possible. By releasing these funds quickly, it is hoped that the grants can have an immediate impact on the 2020 election cycle. How the funds will impact the 2020 elections will be entirely determined by how and at what pace states and localities deploy the federal resources. 

It should be noted that states’ expenditures of their remaining 2018 HAVA funds will also impact the 2020 elections. 

States must provide an annual standard Federal Financial Report and progress narrative for the period ending September 30, which is due by December 31 of the same year. 

Any HAVA funds still remaining at the state level should be tracked and reported separately from this new award. HAVA funds awarded prior to 2018 are available for use until expended and have no impact on the amount awarded for this grant program. 

EAC recognizes that the grants will have similar activities. States have the option to expand the activities planned with the 2018 grant or decide to support different activities. Activities planned with limited 2018 funds, could be moved and supported under this 2020 grant. States can describe the expansions they will do in the program narrative and how those activities are distinguished from or represent expansion to the 2018 grant-funded activities. 

No, these funds are not considered continuation funds and can’t be awarded in the same grant. Given the different matching requirement and longer budget period, we need to award the funds in a different grant. While the funds will be awarded in a separate grant and tracked and reported under a separate FFR, the activities could be very similar to activities supported under the 2018 grant. 

The funds are available under section 101 of HAVA and are considered grants. As such, states are required to follow grant requirements contained in the Code of Federal Regulations, 2 C.F.R. 200, and are subject to both programmatic and financial audits by EAC. The narrative will establish the programmatic objectives EAC will monitor over the course of the performance period. It also establishes the audit standards EAC and its Inspector General will use to ensure funds are spent according to the activities described in the program narrative and in compliance with the law. 

Yes, EAC understands that plans can change over a five-year period. Consult the EAC grants office if you need to revise plans and the budget in the future. 

They are due no later than April 27, 2020. 

States must use the funds for the activities described in the Consolidated Appropriations Act and approved by EAC in the state’s program narrative, due April 27, 2020. In addition, states must follow the Cost Principles in 2 C.F.R. 200 in determining the allowability of specific costs under the grant. Any equipment purchased under the grant must also meet HAVA requirements. 

In-kind contributions are costs covered by a third-party for eligible activities under the grant, e.g. costs for training approved as part of the grant activities and paid for by another agency. They can be used to meet the match requirements. Grantees must document these kinds of contributions. 

“Secure” means the state has identified how it will meet the match or has received an appropriation from the state legislature to meet the match.  States have the full five years of the grant to actually spend the identified funds to meet the matching requirement.

No, they are two separate grants and must be accounted for and reported to EAC separately.

Yes, the funds can be maintained in the same account as long as you can distinguish between revenue and expenditures for each grant separately.

If you want to claim indirect costs under the grant, you must submit an indirect cost rate proposal to EAC.  EAC will then work with the indirect cost unit at the Department of Health and Human Services to review and negotiate an agreement with the state.

Section 209 of HAVA states that EAC does not have the authority to issue any rule, promulgate any regulation, or take any other action which imposes any requirement on any state except to the extent permitted under a specific section of the National Voter Registration Act.  The regulations at 2 C.F.R. 200 are government-wide regulations for federal grants. They are not regulations issued or promulgated by EAC. EAC and its grantees are subject to these and other government-wide regulations.

Sections 107–110 of the C.F.R. describe Office of Management and Budget (OMB) and agency responsibilities related to reviewing and implementing the regulations in 2 C.F.R. 200.  They apply to EAC and its grantees.

Grantees must establish timekeeping practices for employees paid in part or in whole with federal funds or whose time is being allocated as match on the grant.  The regulations at 2 C.F.R. 200 section 430 (i), Standards for Documentation of Personnel Expenses, provide general guidance on timekeeping. They indicate that charges to grants for salaries and wages must be based on records that reflect the work performed, be supported by a system that provides reasonable assurance that the  charges are accurate and properly allocated to the grant, reflect the total activity of the staff person, not just the activity related to the grant, and be incorporated into the official records of the grantee.  

2018 HAVA Election Security Funds

The Consolidated Appropriations Act of 2018 provides $380 million to the U.S. Election Assistance Commission (EAC), as authorized under Title I Section 101 of the Help America Vote Act (HAVA) of 2002 (P.L. 107-252), to make grant payments to states using the voting age population formula described in Sections 101 and 103 of HAVA. A chart showing how much each state is being awarded can be found at /2018funding.

Awards will be made to the entities eligible to receive federal assistance under Title I of HAVA, which includes the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa and the U.S. Virgin Islands (herein referred to as “the states”). The states may re-grant/distribute funds to local election districts/offices at their discretion.

EAC will obligate the funds to the states in the Treasury system and issue grant award notification letters by mid to late January. The grant award letter will allow states to incur costs, effective December 21, 2019, the day after the Consolidated Appropriations Act was signed. Funds will be available for states to deposit in their state election accounts when they return a signed funding request letter and the required certifications and assurances. EAC will provide a template on the EAC website that states can use to meet the stipulations in the letter for accessing the funds.

States should request their funds immediately. Regardless of the disbursement date, states are authorized to incur costs against the grant as of December 21, 2019.

The funds are available as formula, non-competitive grants. States will be asked to submit a 2-3 page narrative overview of activities to be supported with the funds and a line item budget within 90 days of receiving their Notice of Grant Awards. Detailed guidance on development of the plans and budgets will be forthcoming. Note that the awards will be issued and funds available for drawdown prior to receipt of the plan overview to expedite and support any needed expenditures ahead of the 2018 Election.

States are required to match 5 percent of these funds awarded within two years of receiving federal funds. States may either deposit matching funds in their state election accounts or track eligible funds/activities from their state and local general operating budgets to meet the match obligations. State and local funds used for match must be different from funds used to meet Maintenance of Effort or state match associated with HAVA Requirement Payments. American Samoa, Guam and the U.S. Virgin Islands are exempt from the match requirement.

Consistent with provisions in HAVA, states have discretion upon expenditures. The EAC can answer specific questions about how the money may be utilized, and will be capturing questions from states and sharing the answers in updated versions of this FAQ document. 

As a point of reference, the EAC is including along with these FAQs the section of the Consolidated Appropriations Act of 2018 that authorizes and appropriates the federal funds as well as pages 1 and 57 of “Division E – Financial Services and General Government Appropriations Act, 2018,” which is a joint explanatory statement that indicates congressional intent on how the funds may be spent. The joint explanatory language provides on page 57, that:

The bill provides $380,000,000 to the Election Assistance Commission to make payments to states for activities to improve the administration of elections for Federal office, including to enhance election technology and make election security improvements, as authorized under sections 101, 103, and 104 of the Help America Vote Act (HAVA) of 2002 (P.L. 107-252). Consistent with the requirements of HAVA, states may use this funding to

  1. Replace voting equipment that only records a voter's intent electronically with equipment that utilizes a voter verified paper record;
  2. Implement a post-election audit system that provides a high level of confidence in the accuracy of the final vote tally;
  3. Upgrade election­ related computer systems to address cyber vulnerabilities identified through Department of Homeland Security, or similar scans or assessments of, existing election systems;
  4. Facilitate cybersecurity training for the state chief election official's office and local election officials;
  5. Implement established cybersecurity best practices for election systems; and
  6. Fund other activities that will improve the security of elections for Federal office.

The EAC is committed to making funds available as soon as feasibly possible. By releasing these funds quickly, it is hoped that the grants can have an immediate impact on the 2018 election cycle. How the funds will impact the 2018 elections will be entirely determined by how and at what pace states and localities deploy the federal resources. 

States must provide an annual standard Federal Financial Report and program narrative for the period ending September 30, which is due by December 30 of the same year.

Any HAVA funds still remaining at the state level should be tracked and reported separately from this new award. HAVA funds disbursed in earlier years are available for use until expended and have no impact on the amount awarded for this grant program.

Yes. A quorum is not needed to distribute funds to states.

Yes, this is an allowable expenditure and EAC encourages states and localities to explore this type of expenditure as an immediate way to augment cyber capabilities already in place. 

The states have a great deal of flexibility in how they deploy the federal grant funds.  The Reserve category on the budget worksheets are for funds that have not yet been budgeted by the States. As needs or threats become apparent, the funds designated in Reserve will move to other categories on the budget worksheet.  

The EAC grant funds are disbursed by a voting-age population formula to the States. States have discretion as to if and how they make available funds to local election jurisdictions. Some states have chosen to issue funds by formula, others publish a list of reimbursable items while others allow counties to submit proposals and budgets to cover their needs. 

Allowable Costs for 2018 HAVA Funds

HAVA funds may be used to replace any voting equipment designated by the grantee or its sub-receipts to be at the end of its useful life. Equipment title holders should follow local and state rules for the disposition of sensitive equipment.

Travel and lodging are allowable costs under the grant. If the conference directly supports the mission/activities of the election jurisdiction sending the employee, then this would be an allowable expense.

The 2018 HAVA Election Security grant funds can be used for accessibility. Each state, and in some cases local jurisdictions if funds have been subgranted, have discretion on how the funds should be spent.  EAC encourages states to spend funds on accessibility.
HAVA Section 251, 101, 102 Funds

Voting Systems (Special Purpose Equipment)

HAVA Section 251, 101, 102 Funds

Completing the Federal Financial Report

Interest earned on State matching funds should be included in Line 10(i) in the Recipient Share section. Line 10(i) will include the initial required 5% match, interest earned on the recipient share and net program income earned.  Program income will not be reported on lines 10(l – o) because EAC uses that Program Income section to track interest earned on the federal funds.

Interest earned on the Federal share is reported in the Program Income section, on Line 10(l). We must track interest generated on federal funds separately, so we have dedicated lines 10 (l, n and o) exclusively to this purpose. Program income is tracked under Recipient Share using the additive method.

On the Section 251 FFR you will record this transfer by adding the funds to Line 10(l) under Program Income. Use the comments box to record the amount and date of the transfer. On the Section 102 FFR, show the amount transferred on Line 10(n), which will leave the Final FFR for Section 102 with a balance of zero on line 10(o). Use the comments box to note the date and amount of the transfer. EAC has authorized some individual States to make this transfer, but we will also issue a general memorandum authorizing this transfer in the coming days.

You should have one form for each type of funds being reported: 101; 102; and 251. If you have already submitted a final FFR for Section 102 funds, you do not need to submit additional 102 reports.

Yes, we have added fillable versions of the form to our website.

Program income is income you earn as a direct result of activities supported under the grant.  For example, if you developed cyber security training materials with grant funds and charge your voting districts for them, the funds you receive in payment are program income.  Net program income is the amount of income remaining after deducting the costs of providing the materials to voting districts, such as shipping costs. If you include expenses incurred related to program income in the expenditures on the report, you should report total program income on Line 10(l), not net income.

You should make every attempt to spend all interest earned using the additive method during the grant period.  After that, any remaining unexpended interest earned on the federal funds belongs to the federal government. At the end of the five-year period, EAC will close the grant and all remaining unexpended funds, including interest, must be returned to the federal treasury.  This also applies to any program income earned, but not expended, during the grant period.

 

Equipment

Leasing equipment is considered an allowable expense under OMB Circular A-87, according to the limitations and conditions of Attachment B, Section 37,

Rental Costs of Buildings and Materials. The limitations include that “sale and lease back” arrangements cannot cost the state or local government more than when it owned the property. The costs include expenses such as depreciation or use allowance, maintenance, taxes, and insurance. A “less-than-arms-length” agreement (i.e., a state government established a corporation to own the property then leases it back to the state) cannot cost the state or local government more than if title had vested in the state or local government. Rental costs under leases which are required to be treated as capital leases under Generally Accepted Accounting Principles (GAAP) are allowable only up to the amount that would be allowed had the state or local government purchased the property on the date the lease agreement was executed. The provisions of Financial Accounting Standards Board Statement 13, Accounting for Leases, determine whether a lease is a capital lease. The determination is based on factors such as if the lease transfers ownership of the property to the lessee by the end of the lease term; contains a bargain purchase option; the lease term is equal to 75 percent or more of the estimated economic life of the leased property unless the lease term falls within the last 25 percent of the total estimated economic life of the leased property; or the present value at the beginning of the lease term of the minimum lease payments excluding executory costs such as insurance, maintenance, and taxes to be paid by the lessor, including any profit, equals or exceeds 90 percent of the excess of the fair value of the leased property to the lessor at the inception of the lease.

Yes. Consistent with standard Federal guidelines, the State may authorize use in the office or official duty station on an occasional basis, provided that the use involves minimal or negligible additional expense and does not interfere with official business. Employees are expected to exercise common sense and good judgment in the personal use of equipment. The conduct of official business always takes precedence over any limited personal use. Such personal use would be so small that accounting for it would be unreasonable or impractical.

General Purpose Equipment/Furniture

Cellular phones would generally be considered an allowable cost. However, because this expense is not directly related to meeting any of the Title III requirements, the expense could be allocated only to improving the administration of federal elections under Section 101 funds or Section 251 funds pursuant to Section 251(b).

Storage cabinets and shelving are allowable costs as long as they are not covered by the required maintenance of effort. See Section 254(a)(7). Because this expense would not be directly related to meeting any of the Title III requirements, it could be allocated only to funding programs under Sections 101 and 251(b). Cost principles such as allocability and cost reasonableness must still be considered. For example, if the security cages and shelving will not be used exclusively for the purpose of improving the administration of federal elections, only that percentage of costs associated with the administration of federal elections can be charged to the HAVA grant. 

High speed letter openers are an allowable cost for this stated purpose. As this expense is not directly related to meeting any of the Title III requirements, the cost can be allocated only to the Section 101 funding program or to Section 251 funds pursuant to Section 251(b). Allocability and cost reasonableness must be considered in assessing the propriety of this type of expense. If the letter opener will not be used exclusively for the purpose of opening absentee ballots and other mail unrelated to improving the administration of Federal elections, only that percentage of costs associated with the administration of Federal elections can be charged to the HAVA grant. Similarly, depending on the volume of mail it may be more reasonable to manually open the letters. 

This type of mail processing system is an allowable cost for the stated purpose. Because this expense is not directly related to meeting any of the Title III requirements, it may be allocated only to the funding programs established in Section 101 or Section 251 funds pursuant to Section 251(b). However, allocability and cost reasonableness must be considered to fully assess the appropriateness of such an expense. For example, if the mail processing system will not be used exclusively for the purpose of processing mail related to improving the administration of Federal elections, only that percentage of costs associated with the administration of Federal elections can be charged to the HAVA grant. Similarly, depending on the volume of mail it may be more reasonable to manually process the mail. 

Vehicle Purchases

While motorized vehicles are an allowable cost when they are used for voter education pursuant to Section 101(b)(1)(C) of HAVA, there are significant issues related to allocability and cost reasonableness that must still be considered in assessing the appropriateness of such an expense. For example, if the vehicle will not be used exclusively for the purpose of voter outreach or other activities associated with improving the administration of Federal elections and are used for purposes unrelated to improving the administration of Federal elections, only that percentage of costs associated with the administration of Federal elections can be charged to the HAVA grant. Even in this instance, the appropriate percentage of cost could only be allocated to the funding programs under Section 101 or Section 251(b). As for the reasonableness analysis, it may be more reasonable to rent a vehicle rather than to purchase, insure and maintain vehicles that will only be used infrequently or periodically. 

Yes. Section 101 funds may be used to train election officials, poll workers, and election volunteers. Section 251 can only be used for the educational costs that benefit Federal elections, as those funds are restricted to improving the administration of Federal elections funds subject to the requirements of Section 251(b). The State should carefully consider the prudence of funding an ongoing expense such as printing and distribution charges with a one-time funding source like these HAVA funds. These costs will inevitably be assumed by the State or local government upon the exhaustion of Federal funds.

Voting Systems (Special Purpose Equipment)

Office furniture would generally be considered an allowable cost as long as such cost is not covered by the maintenance of effort requirements imposed by Section 254(a)(7). The purchase of office furniture is only allowable if it can be demonstrated that the furniture would improve the administration of Federal elections. As such, those costs could only be allocated to the funding programs under Sections 101 and 251(b). Factors such as allocability and cost reasonableness must still be considered. For example if the office furniture will not be used exclusively for the purpose of improving the administration of Federal elections, only that percentage of costs associated with the administration of Federal elections can be charged to the HAVA grant. Furthermore, the cost for the furniture must be reasonable as compared to what the election jurisdiction is getting.

The January 1, 2007 date referenced in Section 301(a)(3)(C) applies to when the funds are provided, not when the equipment is purchased. If a jurisdiction already meets the accessibility requirements under Section 301(a)(3) and they wish to purchase additional voting systems, the State would not be required to procure additional voting equipment that is accessible to persons with disabilities. Nevertheless, the equipment procured with those funds must meet all other HAVA Section 301 requirements. If States receive additional HAVA funding from the EAC after January 1, 2007 and wish to use that funding to purchase new voting systems, then all equipment purchased with the new funding must meet the requirements of Section 301(a)(3). If mixed funding sources are used in future voting system procurements, States will have to separately account for restricted and unrestricted money separately if the State wishes to purchase non-accessible equipment.

Generally, upgrading wiring is an allowable cost for this purpose. Upgrading wiring is justified if it improves the administration of Federal elections. It can be paid for using Section 101 funds or Section 251 funds up to the minimum payment identified in Section 252. However allocability and cost reasonableness must still be considered. For example, if the internet wiring will not be used exclusively for the purpose of improving the administration of Federal elections, only that percentage of costs associated with the administration of Federal elections can be charged to the HAVA grant. 

Yes. Maintenance of a statewide voter registration system can be paid for from Section 251 funds or Section 101 funds. However, cost reasonableness must still be considered. The State should carefully consider the prudence of funding an ongoing expense such as printing and distribution charges with a one-time funding source like these HAVA funds. These costs will inevitably be assumed by the State or local government upon the exhaustion of Federal funds. 

The EAC has concluded that (for the purposes of requirements payments) any pre-award cost “incurred pursuant to negotiation and in anticipation of grant award”, as required by 17 OMB Circular A-87, Pre Award Costs, is reimbursable if the cost was included in a (later) approved HAVA State plan and it was incurred after Congress appropriated HAVA requirements payment funding on February 20, 2003. In order to be properly attributed as a pre-award grant cost, a cost must have been necessary to incur in order to meet the scheduled requirements of the grant. HAVA Title III requirements include a mandate for the creation of a Statewide Voter Registration Database (42 U.S.C. §15483(a)) on or before January 1, 2004 (42 U.S.C. §15483(d)) or apply for a waiver (for good cause shown) to extend the deadline to January 1, 2006. The EAC has concluded that it is reasonable for a State to conclude that pre-award expenditures on Statewide Voter Registration Databases were necessary in order to meet HAVA timelines. Pre-award costs expended to procure a voter registration database that will meet HAVA requirements fits the use limitation. The cost must not have been allocated to meet the States maintenance of effort requirement or 5 percent matching fund requirement. In order to properly allocate a pre-award cost to a grant, the recipient must get written approval from the awarding agency, the EAC. 

Voting machine purchases made prior to the passage of HAVA and after January 1, 2001 are reimbursable under Sections 102 and 251. In addition, Section 251(c)(1) of HAVA permits reimbursement of voting machine purchases made after the Federal general election in November 2000. If Section 102 funds are used to reimburse expenses incurred to purchase voting systems those purchases (1) must have been made after January 1, 2001; (2) must have been made to replace punch card or lever voting systems used on or before the deadline for submitting certifications established in Section 102; and (3) must have been used to purchase voting systems that comply with Section 301(a) of HAVA. In addition, the amount of reimbursement per precinct cannot exceed the pro rata amount distributed by GSA. If Section 251 funds are used as reimbursement for HAVA compliant voting machine purchases made on a multi-year contract, then pursuant to Section 253(a)(5) the amount of the State’s matching funds must be increased in an amount equal to the amount of the reimbursement. If Section 251 funds are used as reimbursement for voting machine purchases made on other than a multi-year contract, the provision requiring an increased matching funds does not apply. 

Yes. The funds can only be used to reimburse the purchase of voting systems that meet the requirements of Section 301(a) of HAVA; purchase must have occurred after the November 2000 election; and if the money is used to reimburse a purchase of voting equipment on a multi-year contract, then the State must increase its maintenance of effort expenditure by the amount of the payment and additional matching funds are required under Section 253(b)(5).

Section 251(c) of HAVA contemplates using Title II funds for the purpose of reimbursing States for expenses associated with voting equipment that meets the requirements of HAVA purchased prior to the availability of funds under HAVA. This concept of reimbursement applies to the county or other local government unit that purchases voting equipment in lieu of such purchases on a State level. HAVA funds may reimburse and replace county funds that were obligated after October 29, 2002, (or obligated prior to January 1, 2001 under a multi-year contract) in advance of the receipt of Federal funds. Thus, if the county has already earned those reimbursement payments, it can reappropriate the funds to uses it deems proper, subject to any conditions established by the State in granting funds to counties.

Either Section 101 or Section 251(b) funds can be used for expenses related to maintenance of voting systems. Under Section 251(b), a State is limited to the amount that it would have been entitled to as a minimum payment until the State meets the requirements of Title III.

Generally, a State or county can rent or lease out its voting systems. Common Rule, 41 C.F.R. § 105-71.32 Equipment, prohibits a grantee from using a piece of equipment purchased using grant funds to compete unfairly with the private sector. If a State rents or leases its voting machines out it must do so in a way that does not thwart competition with the private sector. The price paid by the lessee must be a competitive price. Equipment is defined by the common rule as "tangible, non-expendable, personal property having a useful life of more than one year and an acquisition cost of $5,000 or more per unit. A grantee may use its own definition of equipment provided that such definition would at least include all equipment defined above.” If the voting systems meet the definition of “equipment” either under the Common Rule or State laws, rules or regulations, the restriction must apply. Income from leasing voting equipment to other jurisdictions would be considered program income, see OMB Circular A-102, Common Rule, 41 C.F.R. § 105-71.125 Program Income. The only appropriate treatment of income classified as program income during the grant period is for the county to dedicate the income to uses permitted under HAVA Section 251. Section 251 allows the use of HAVA funds to implement the requirements of Title III; once those requirements are met, to improve the administration of elections for Federal office. After the expiration of the grant period, the income generated by the lease of voting systems may be used by the county as it chooses. 

No. The voting equipment provisions of HAVA apply only to elections for Federal office. However, there may be State laws, rules or regulations that require the use of accessible voting systems in State and/or local elections.

Voting Systems/Equipment Purchases

States and its counties may use funds distributed under Section 101 or Section 251 to purchase voting equipment used to conduct absentee voting as long as that equipment meets the requirements of Section 301(a) of HAVA. The definition of voting system in Section 301(b) of HAVA includes equipment used to administer absentee voting. As such, no pre-approval from the EAC is required prior to purchase. However, cost reasonableness must still be considered in selecting the equipment. The cost must be reasonably related to the value of the equipment purchased.

Yes. States and its counties may use funds distributed under Section 101 or Section 251 to purchase additional accessible voting equipment as long as that equipment meets the requirements of Section 301(a) of HAVA. 

The answer depends on whether the purchase of VVPAT is part of the purchase of a compliant voting system (under Section 301(a)) or if it is purchased as a retrofit for a compliant voting system. If it is a component of a voting system that is being purchased, then Section 251 funds can be used to the same extent that they are available to meet the requirements of Title III. However, if the VVPAT is purchased as a retrofit, then 251 funds can be used ONLY to the extent that they can be used to improve the administration of Federal elections (see 251(b)(2)), as VVPAT is not a required component of voting systems under section 301(a) and would serve only to improve the administration of elections. Also, Section 101 funds can be used. Section 102 funds would not be appropriate for a retrofit VVPAT because VVPAT is not a requirement of Section 301.

Accessibility/ADA Compliance

Generally, making polling places accessible is an allowable cost. However, this expense is not directly related to meeting any of the Title III requirements. As such, this cost can be allocated only to funding programs under Section 101 or Section 251(b).

No. HAVA provides only for reimbursement of expenses related to voting system purchases. There is no provision for the reimbursement of expenses incurred to improve access to polling places.

Capital Improvements

Generally, making modifications to a warehouse to store voting equipment is an allowable cost. However, this expense is not directly related to meeting any of the Title III requirements. Only Section 101 funds or Section 251(b) funds may be used for this expense. However allocability and cost reasonableness must still be considered. For example, if the warehouse modification will not be used exclusively for the purpose of improving the administration of Federal elections, only that percentage of costs associated with the administration of Federal elections can be charged to the HAVA grant. Similarly, it may be more reasonable to select a different warehouse rather then retrofit the current structure. 

Generally, purchasing a warehouse to store voting equipment is an allowable cost. This expense is not directly related to meeting any of the Title III requirements. Thus, only Section 101 or Section 251(b) funds may be used. Factors such as allocability and cost reasonableness must still be considered in determining the appropriateness of the expense. For example, if the warehouse will not be used exclusively for the purpose of improving the administration of Federal elections, only that percentage of costs associated with the administration of Federal elections can be charged to the HAVA grant. Similarly, it may be more reasonable to rent a warehouse rather then purchase one. 

No. Section 102 of HAVA grants payments to States for the purpose of replacing punch card and lever voting systems not for the storage or warehousing of such equipment. 

Generally, renting a warehouse to store voting equipment is considered to be an allowable cost. This expense is not directly related to meeting any of the Title III requirements. Thus, only Section 101 or Section 251(b) funds may be used. Factors such as allocability and cost reasonableness must still be considered in order to determine the appropriateness of this type of expense. If the warehouse will not be used exclusively for the purpose of improving the administration of Federal elections (e.g., rental space would be used to house equipment other than voting systems that would be used in Federal elections), only that percentage of costs associated with the administration of Federal elections can be charged to the HAVA grant. Rental costs of buildings and equipment are covered by OMB Circular A-87.

Rental costs under leases which are required to be treated as capital leases under Generally Accepted 13 Accounting Principles (GAAP) are allowable only up to the amount that would be allowed had the State or local government purchased the property on the date the lease agreement was executed. The provisions of Financial Accounting Standards Board Statement 13, Accounting for Leases, determine whether a lease is a capital lease. The determination is based on factors such as if the lease transfers ownership of the property to the lessee by the end of the lease term; contains a bargain purchase option; the lease term is equal to 75 percent or more of the estimated economic life of the leased property unless the lease term falls within the last 25 percent of the total estimated economic life of the leased property; or the present value at the beginning of the lease term of the minimum lease payments excluding executory costs such as insurance, maintenance, and taxes to be paid by the lessor, including any profit, equals or exceeds 90 percent of the excess of the fair value of the leased property to the lessor at the inception of the lease.

Conference Attendance

Generally, HAVA funds may be used to attend an election industry association conference to see available voting equipment if such funds were not a part of the State’s maintenance of effort requirement. HAVA funds may not be used to pay dues to the association. Because this expense is not directly related to meeting any of the Title III requirements, only Section 101 or Section 251(b) funds may be used.

Voter Education & Voting Officials Training

No. Pursuant to the language of HAVA, the funds must be expended to educate “voters” or groups of people who meet State voting requirements. As coloring books are traditionally geared towards the young (who are not eligible to vote), this use of Section 101 funds appears not to meet the fund’s educational use requirements

May HAVA funds be used to create video training aids or instruction lead training, or employ a full time training manager for Officers of Election on new voting equipment, provisional ballots and/or ID requirements for first time mail registrants?

No. In order to fit within the allowable expense of voter education, the item procured must provide information on voting procedures, rights or technology. Items intended to “get out the vote” or merely encourage voting do not meet this requirement. Items that are not fundamentally educational may be considered advertising or public relations costs prohibited by OMB Circular A-87 Advertising and public relations costs. 

Food Purchases

Generally, HAVA funds may be used to purchase food consumed during training. The provision of food is covered by OMB Circular A-87 Meetings and conferences. Meals associated with meetings and conferences are allowable. However, meals that are used for entertainment purposes and alcohol are not allowable. 

No. In order to fit within the allowable expense of voter education, the item procured must provide information on voting procedures, rights or technology. Items intended to “get out the vote” or merely encourage voting do not meet this requirement. Items that are not fundamentally educational may be considered advertising or public relations costs prohibited by OMB Circular A-87, Advertising and public relations costs. 

Legal Advice

According to the plain language of HAVA in Sections 101(b)(2) and 251(f), funds distributed under Sections 101 and 251 cannot be used to pay for costs associated with litigation unless the exceptions in Sections 101(b)(2)(A) and 251(f)(1) apply, which permit legal expenses covering the implementation of HAVA (not a State provision that is more strict than the provisions of HAVA).

Yes. However, grantees generally seek advice from the agency that administers the grant on what constitutes an allowable cost. A State may be able to obtain the information that it needs without the necessity of a legal opinion by consulting with other State departments that are administering Federal grant programs at the State level. Grantees are encouraged to request the assistance of the EAC in determining the permissibility of certain costs rather than expending HAVA funds to make this determination. OMB Circular A-87, Defense and prosecution of criminal and civil proceedings, and claims, allows for legal expenses required in the administration of a Federal program. 

Affirmative Action Compliance

No. The provisions of Executive Order 11246 apply to contractors and subcontractors with the Federal government. The funds provided by EAC under HAVA do not meet the definition of a contract as stated in the Federal Acquisition Regulations, Part 2.101, and as defined by the Government Accountability Office in Principles of Federal Appropriations Law.

Accounting (Recordkeeping & Reporting)

The funds should be included in the audit of the fiscal year in which the funds were expended, which is the fiscal year in which the funds were received from the Federal government and then appropriated to use by the State or county. So, if the funds were received in FY05 (October 1, 2004 – September 30, 2005) and appropriated in FY05 by the 19 State or county as reimbursement for expenses made in a previous fiscal year by the State or county, then the funds should be covered by the FY05 audit.

EAC has established the grant period for HAVA Title II funds as the period beginning on the date of disbursement of funds to the State and ending when the State and/or a political subdivision of the State expends all of the funds distributed by EAC to the State, all matching funds, and all interest earned on either the Federal funds or State matching funds.

Each grant or 251 requirements payment appropriated by the US Congress and distributed by EAC to a state (whether whole or in increments) begins a grant period when distributed (awarded) to the state.  Any incremental distribution of a 251 appropriated requirements payment will be considered part of the related whole 251 requirements grant.  Each grant or 251 requirements payment grant ends when all the funds distributed to the state for that payment have been expended and such final expenses reported within the annual Federal Financial Report (SF 425 - formerly the Financial Status Report SF 269).

 

 

 

The record keeping requirement begins with expenditures under each grant or each appropriated 251 requirements payment. The grant record retention period for each grant or 251 requirements payment starts on the day the grantee submits its FFR expenditure report as defined in FAQ 39 above which includes the final expenditures under that grant or 251 requirements payment.

The length of the retention period:

(1) Except as otherwise provided, records must be retained for three years from the record retention starting date specified in the paragraph above.

(2) If any litigation, claim, negotiation, audit or other action involving the records has been started before the expiration of the 3-year period, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular 3-year period, whichever is later.

 

The following CFDA numbers have already been assigned to HAVA funding programs: (The Secretary of State's office should be able to tell you which HAVA funds were provided to a county.)

  • 39.011 - Title I, Sections 101 and 102 - "early money" election reform payments made to States (distributed by the General Services Administration in 2003);
  • 93.617 - Title II, section 261 - grants to States for voting access for individuals with disabilities (aka EAID, distributed by the U.S. Department of Health and Human Services in 2003, 2004, and 2005);
  • 93.618 - Title II, section 291 - grants to State protection and advocacy systems to promote voting access for individuals with disabilities (distributed by the U.S. Department of Health and Human Services in 2003, 2004, and 2005);
  • 90.400 - Help America Vote College Program - grants to promote the participation of college students as nonpartisan poll workers (distributed by EAC before 9/30/04); and
  • 90.401 – Sections 251- 258 - Requirements Payments to States – (distributed by the EAC in 2004 and 2005)

Yes. Consistent with Section 251(b) in order to use remaining Title II funds for the improvement of the administration of elections for Federal office, the State must submit a verification that all of the Title III requirements have been met (not just the voting system requirements) or certify prior to the time that all Title III requirements are met that the State will not use more than the minimum payment amount. This does not alleviate the responsibility that the State has to assure that its spending is in keeping with its State plan. Thus, if the proposed spending on improving election administration is not reflected in the State plan and represents a material change, the State plan must be changed prior to the change in spending.

Enforcement

No. The EAC will not be engaged in recouping funds from a local government that were misspent by a local government or which were overpaid to a local government under a sub-grant, the obligation is on the State. The EAC will recoup any funds misspent by a local government from the State government.

The Department of Justice is given enforcement authority over Title III of HAVA. Any claim, law suit, or request for remedies including penalties would be sought against the State for its failure or one of its county’s failure to comply with HAVA, would be brought by the Department of Justice. 

The EAC expects the State to repay a pro rata portion of the funds received by the State in compliance with the requirement of Section 102(d). That pro rata portion would be determined by multiplying the percentage of noncompliant precincts with the amount of funding originally received under Section 102.

Miscellaneous

The State must follow its own laws and procedures regarding the distribution of grant funds when issuing a sub-grant, but must also assure that the sub-grantee is aware of the limitations imposed by the Federal grant. A State must follow its own law as to whether a cost sharing agreement is required or some other form of grant agreement is needed. EAC suggests that there be some documentation that supports the transfer of these funds to the local governments, whether it be a certification by the governments that they will comply with the limitations or that the governments receive funds on a cost reimbursement basis after providing a request for the funds and proof that they were spent in accordance with the State and Federal restrictions. OMB Circular A-102, Common Rule, 41 C.F.R. § 105-71.137, Sub-grants, covers the requirements for States that issue sub-grants of Federal funds. 

Federal campaign finance laws and regulations define these types of elections as Federal elections (see 11 C.F.R. § 100.2) and case law interpreting 42 U.S.C. Section 1973i relating to prohibited election offenses consider a presidential preference primary to be an election for federal office. While HAVA does not define an election for federal office, the statements of law regarding other election processes are instructive as to the meaning of the term for purposes of HAVA. State law may interplay. Some States have a definition of Federal election that excludes a presidential preference primary. While these statutes may be enacted for reasons related to the cost of an election, etc., they must be considered. 

The Voting Section, U.S. Department of Justice (charged with enforcing the requirements of HAVA Title III), addressed this issue: HAVA does not contain a definition of the term "election for federal office." However, Section 3 of the National Voter Registration Act of 1993, 42 U.S.C. 1973gg-1(1)&(2), defines "election" and "federal office" as those terms appear in the Federal Election Campaign Act of 1971 (2 U.S.C. 431(1) & (3)). It is the Department's view that the requirements of Title III of HAVA were intended to apply in any general, special, primary, or runoff election for the office of President or Vice President, including presidential preference primaries, and any general, special, primary, or runoff election for the office of Senator or Representative in, or Delegate or Resident Commissioner to the Congress from the 50 states, the District of Columbia, and the four territories. The EAC has taken the same approach with regard to the Federal funding programs that the agency oversees (HAVA Title I "early money" and Title II requirements payments). 

No. The plain language of Section 251(b)(2) of HAVA requires that the State have implemented the requirements of Title III prior to using more than what the State could have obtained as a minimum payment for activities to improve the administration of elections for Federal office. Thus, the Section 251 restrictions will not be lifted on a county-by-county basis.

No. Section 301(d) of the Help America Vote Act of 2002 (HAVA) requires all States to comply on and after January 1, 2006 with the requirement that each voting system used in elections for Federal office must meet the HAVA Title III, Section 301, voting system standards. The EAC has no authority to extend or waive this statutory deadline. The U.S. Department of Justice, the agency authorized by HAVA to enforce Title III provisions, has made it clear that the agency plans to enforce this deadline. Only the enactment of Federal legislation providing for the extension or waiver of this deadline can change this requirement.

HAVA Section 102(a)(3)(B) permitted States, which had received Title I, Section 102 funds to replace punch card and lever machine voting systems, to file for a waiver of the original November 2, 2004 replacement deadline. Twenty-three of the thirty States that received such funds requested the waiver. The waiver gives these States until the first election for 24 Federal office held on or after January 1, 2006 to replace such systems without risk of losing these Federal funds. The first Federal election would normally be the 2006 primary election for Federal office, unless the State holds an earlier special election for Federal office to fill a vacancy. 

Matching Funds

According to HAVA Section 253(b)(5), the State match is 5 percent of the total amount to be spent (taking into account the Federal amount the State amount). The formula for determining the amount of State matching funds based on the Federal funds requested is:

(Federal Dollars/.95) = State Match

Deriving from that formula an equation that would allow us to figure the Federal dollars from the available State match:

Federal Dollars = 19 x State Match

No, a State may not use State matching funds to satisfy the requirement that it maintain its effort. Both maintenance of effort and matching funds requirements are considered cost sharing methods, ways by which Congress and thereby the Federal Government get States to share in the expense of funding a particular endeavor. Maintenance of effort requirements are considered different from matching fund requirements in that the intent, generally, is to assure that the Federal funding actually increases the amount of funding to a particular program or task.

While there is no legislative history on this particular issue, a plain reading of HAVA must result in an understanding that Congress included two separate and distinct cost sharing requirements, matching funds and maintenance of effort. Congress did not intend for one of these cost sharing methods to cancel the other. Rather, it is apparent that Congress intended that the state both contribute to the improvement of election systems through the 5 percent match requirement as well as the fact that the Federal and State funding would increase the funding to election administration efforts.