In accordance with our regular practice, we contacted EAC to seek additional factual information and its legal views on this matter.[1] EAC responded with its explanation of the pertinent facts and legal analysis.[2]
BACKGROUND
Congress assigned EAC responsibility for administering grants to states to improve the administration of federal elections.[3] The funds at issue here were appropriated to EAC in fiscal years 2018 and 2020 for activities “to improve the administration of elections for Federal office... as authorized by” section 101 of HAVA.[4] In turn, section 101 of HAVA authorizes states to use grant funds for the purpose of "[i]mproving the administration of elections for Federal office."[5]
In September 2021, the Colorado Department of State asked EAC whether it could use HAVA grant amounts to pay for physical security services and social media
threat monitoring.[6] The Colorado Department of State asserted that election officials cannot effectively perform their duties if they feel their safety is in jeopardy and, furthermore, that additional security protections were necessary to prevent
- ↑ GAO, Procedures and Practices for Legal Decisions and Opinions, GAO-061064SP (Washington, D.C.: Sept. 5, 2006), available at www.gao.gov/products/GAO-06-1064SP; Letter from Assistant General Counsel for Appropriations Law, GAO to General Counsel, EAC, Feb. 2, 2022.
- ↑ Letter from Interim Executive Director and Acting General Counsel, EAC to Assistant General Counsel for Appropriations Law, GAO, March 1, 2022 (Response Letter).
- ↑ Help America Vote Act of 2002, Pub. L. No. 107-252, §§ 101, 102, and 251, 116 Stat. 1666, 1668-72. and 1692-93 (Oct. 29, 2002) codified at 52 U.S.C. §§ 20901, 20902, 21001. Although HAVA permanently vests in the Administrator of General Services the authority to administer these grants, Congress in the two relevant annual appropriations acts temporarily vested this authority in EAC. Financial Services and General Government Appropriations Act, 2020, Pub. L. No. 116-93, Div. C, Title V, 133 Stat. 2317, 2461 (Dec. 20, 2019) ("each reference to the 'Administrator of General Services' or the 'Administrator' in sections 101 and 103 shall be deemed to refer to the 'Election Assistance Commission'"); Financial Services and General Government Appropriations Act, 2018, Pub. L. No. 115-141, Div. E, Title V, 132 Stat. 348, 562 (Mar. 23, 2018) ("each reference to the 'Administrator of General Services' or the 'Administrator' in sections 101 and 103 shall be deemed to refer to the 'Election Assistance Commission'").
- ↑ Pub. L. No. 116-93, Div. C, Title V, 133 Stat. at 2461; Pub. L. No. 115-141, Div. E, Title V, 132 Stat. at 562; Response Letter at 1.
- ↑ 52 U.S.C. § 20901(b)(1).
- ↑ Request Letter at 1.
