WASHINGTON - The Justice Department isn't penalizing states that fail to upgrade voting systems by next week's elections, a requirement passed by Congress in 2002.
Federal efforts to combat election fraud and prevent voter intimidation Nov. 7 are among the most rigorous ever, Assistant Attorney General Wan J. Kim said Tuesday. He estimated 800 federal observers and monitors are headed next week to oversee elections in 20 states - selected in part because of close races there.
But prosecutors have not penalized states, or tried to hold them in contempt, if they failed to comply with the 2002 Help America Vote Act, Kim said. The law required states to plan for switching to electronic ballot machines and have a voter registration database up and working in time for the 2006 elections.
If states "miss a deadline, or if they don't do something by a certain time, then obviously we would first go back to the table and try to figure out why, and how we can fix the problem," Kim told reporters.
If a state still falls short, the Justice Department could go to court and seek a contempt order, which could carry penalties, Kim said. "But that's something we don't like to do. It means a problem's broken and we can't fix it easily."
Justice Department officials said it is unclear how many states have not fully updated their voting systems. The department has filed lawsuits against four states - Alabama, Maine, New Jersey and New York - and they have until sometime in 2007 to comply.
Other states are in varying degrees of compliance. They have escaped legal action because they have made good-faith efforts to meet the new standards.
But critics say the absence of electronic voting machines and outdated registration rolls can lead to major problems at the polls - and potentially skew election results.
States like New York and Connecticut, with a number of competitive elections that could decide which party controls the U.S. House, still use lever ballot machines that generally have a higher error rate than other machines, said George Washington University law professor Spencer Overton.
Lever ballot machines also can't be used by blind voters, and not all election jurisdictions have the required alternate handicapped-accessible voting systems available, Kim acknowledged.
"We could see machinery outcomes shape the direction of our country," said Overton, a commissioner on the 2005 Carter-Baker Commission on Federal Election Reform.
Kim said the Justice Department has been far more aggressive in targeting election law violations, filing 17 lawsuits this year alone against counties, states and other jurisdictions. On average over the last two decades, the department has sued eight or nine jurisdictions a year.