brennan center for justice

4. Enforcement MechanismsA. Provision DetailsNew legislation or regulations should give the appropriate agency adequate enforcement powers byauthorizing it to seek civil penalties against voting system vendors for failure to comply with theirduty to report any voting system failure or vulnerability or to remedy the issue after learning aboutit. It should also cap the penalty amount for a series of related violations at a specific dollar amount;similarly, there should be a specific dollar cap on the penalty amount for problems for any individualmodel and version of a product.B. Responsible AgencyAs already discussed, the Department of Justice and the Voting Rights Section of its Civil Right Divisionhave a long history of taking enforcement actions under a variety of federal laws related to voting. In fact,according the Department’s website, it has filed a dozen actions to enforce various HAVA requirements,including requirements related to voting machines. 268 Accordingly, the most logical place to houseenforcement powers related to the database is with the Department.HAVA already divides authority between the EAC and DOJ, giving the EAC responsibility for providinginformation and advising local jurisdictions, and giving the Department of Justice enforcementpowers.The EAC’s ability to take enforcement actions againstensuring that the appropriatemanufacturers is likely to be more limited. As alreadydiscussed, the EAC currently has the power to decertifyfederal agency can enforcesystems 269 it previously certified (which is only a smallpercentage of systems currently used in the United new vendor reporting requirementsStates) 270 or suspend the registration of a manufacturer 271seeking federal certification for new systems for variouswould help restore publicinfractions. This does not include failure to report to aconfidence in voting systems.central database, but we can imagine an amendmentto the VSTCMP that allows the EAC to take suchactions for failure to comply with database reporting requirements. However, using decertificationand/or suspension of registration would be rather blunt instruments for what could, in many cases berelatively minor infractions. As the VSTCPM itself notes, “[d]ecertification is a serious matter. Its usewill significantly affect Manufacturers, State and local governments, the public, and the administrationof elections.” 272 It is doubtful that the EAC would want to take such a drastic step for all but the mostserious infractions. At the same time, the EAC does not have the power to decertify systems it has notcertified, which represents the vast majority of the systems in use today. 273While it may be technically possible for the EAC to take additional enforcement action – such as seekingimposition of monetary penalties – if Congress amended HAVA to vest it with that power – it is not clearthat the agency currently has the infrastructure or institutional knowledge to carry out such tasks. theGAO is almost certainly constitutionally barred from taking any enforcement action, as it is considered acreature of Congress, which prevents it from taking actions that amount to executing the law. 274Brennan Center for Justice | 37