State of Elections

William & Mary Law School | Election Law Society

Archives for December 2022

Accessibility vs. Security: Online Voting in Puerto Rico

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By Shannon Schmidt

While the United States’ partisan battle between election accessibility and election security continues to rage, one US territory has quietly set in motion a plan that places the latter at risk to the benefit of the former.

In the spring of 2020, the Senate of Puerto Rico passed Senate Project 1314, a bill that would reform the territory’s electoral code. The bill contained an online voting plan which would call for the Puerto Rico State Commission on Elections to create an internet voting program accessible to all Puerto Rican voters by the 2024 gubernatorial election. Under the plan, Puerto Rico’s election commission would later be called to consider implementing exclusively-online voting in 2028. In response to this plan, groups like the ACLU, the Brennan Center, and Verified Voting urged then-governor of Puerto Rico Wanda Vázquez Garced to veto the bill.

According to these groups, internet voting cannot be accomplished securely. In a letter to the governor, members of Verified Voting–a nonpartisan collective of computer scientists and cybersecurity experts–described internet voting as the most vulnerable method of voting. The letter listed the types of attacks that would pose credible threats to internet voting, such as voter authentication attacks, malware on voters’ devices, server penetration attacks, and spoofing attacks. It also highlighted that the prevalence of these attacks could not be reliably detected. Even an online voting system that seemed to be working as intended could be subject to interference from undetected cyber-attacks.

Nevertheless, in June of 2020 Governor Wanda Vázquez Garced signed the new version of the electoral code into law, thus setting in motion the election commission’s task to create an internet voting plan. If the plan is successful, the Puerto Rican vote will be 100% online-cast by 2028.

Puerto Rico was not the first jurisdiction in the United States to adopt an online voting system, but its plan may be the most ambitious. In an article from 2020, Politico’s Eric Geller lays out three basic ‘flavors’ of internet voting that have permeated United States elections: electronic delivery, where voters receive a digital copy of a blank ballot by either email or download; electronic ballot marking, where voters can fill out their ballot over their personal electronic device, but must still mail it in or cast it in person; and electronic ballot return, where voters return their completed ballot online. As of 2020, three states–West Virginia, New Jersey, and Delaware–had adopted fully-electronic ballot completion and return for certain voters, including voters with disabilities. In their report “Email and Internet Voting: The Overlooked Threat to Election Security,” watchdog group Common Cause and several other advocacy organizations highlighted military voters as a demographic that has become routinely subject to fully-online voting. Even so, voters within this demographic are only subjected to online voting for as long as they are deployed overseas.

By 2028, Puerto Ricans could be the only constituency in the United States for whom voting online is the only option. And this reality may only implicate the election of Puerto Rico’s territory-wide leadership in the short-term; if Puerto Rico gains statehood by 2028, at least about 4,083,332 voters would receive and cast their votes in the 2028 U.S. presidential election fully electronically.

Proponents of online voting, like West Virginia Secretary of State Mac Warner, believe that online voting is a useful tool for specialty groups–such as service members and people with disabilities–who have been disenfranchised by alternative systems. Similarly, could Puerto Rican voters benefit from these systems in light of their unique obstacles to voting?

In 2017, Puerto Rico’s electorate was reduced after thousands of Puerto Ricans moved to the mainland (especially south and central Florida) following the devastation of Hurricane Maria. In the 2020 primaries, Puerto Ricans faced such long lines at the polls that polling locations were forced to remain open past their official closing times. Even worse, some voters who did reach the polls in 2020 were unable to cast their vote after paper ballots failed to reach voting precincts, further damaging Puerto Ricans’ faith in their electoral system.

Online voting would likely make voting easier and more accessible to many Puerto Ricans. However, voters’ access to online voting raises several logistical concerns specific to the Puerto Rican landscape. For example, approximately 35.7% of households in Puerto Rico do not have computers with access to broadband internet. Ongoing problems with Puerto Rico’s electricity grid, paired with the island’s vulnerability to natural disaster, could prevent Puerto Ricans from casting their vote in the aftermath of utility-disruptive events like hurricanes and tropical storms. Still, online voting would likely extend the window within which Puerto Ricans could cast their votes, and its implementation would not preclude the continued installation of polling locations for voters without home-access to the internet.

But heightened accessibility alone may not justify the security threats to online voting. By 2028, Puerto Rico could demonstrate the success of online voting in several ways; for example, general voter turnout and turnout among historically-disenfranchised groups may have significantly increased. But while the successes of online voting may be clear and demonstrable, its failures could still lurk beneath the surface, undetected.

Is the Montana Disclose Act in the Supreme Court’s Crosshairs?

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By Lucas Della Ventura

From George Washington’s warnings of the danger of corruption to “drain the swamp,” the influence of large sums of money in the pockets of politicians and their campaigns have concerned Americans throughout the nation’s history. In Citizens United v. FEC, the Court breathed life into Thomas Jefferson’s forewarning that the judiciary would enable corruption: “The engine of consolidation will be the federal judiciary; the two other branches the corrupting and corrupted instruments.” With the removal of limitations on corporate “independent” expenditures, the Court tied the state governments’ hands in enacting and enforcing state laws restricting campaign contributions. The modern era of unlimited corporate campaign spending was birthed, seeing a 900% increase in campaign spending by corporations and other outside groups. From 2010 to 2018, Super PACs, also offspring of Citizens United, are estimated to have spent $2.9 billion on federal elections. According to OpenSecrets.org, the leading website that tracks money in politics, so-called “dark money” groups (organizations that spend money from undisclosed sources) have spent roughly $1 billion — mainly on television and online ads and mailers — since Citizens United was decided.

Although the Court in Citizens United struck down limitations on “independent” expenditures, all of the Justices, save Thomas, approved of strong disclosure regulations. Justice Kennedy stated, “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”  In reaction to Citizens United and the flood of corporate and dark money entering into not only presidential elections, but also local elections, states like Montana, enacted comprehensive disclosure regimes. These state disclosure regimes have remained largely unscathed in the election law context, but not in others. The Supreme Court recently struck down a California regulation that required charities known for their conservative political activism and campaign financing, to disclose to the California Attorney General’s Office IRS forms containing the names and addresses of their major donors. Notwithstanding that the case focused on a state’s governmental interests in investigating charitable misconduct and the state’s lack of narrow tailoring, the decision put on alert states like Montana that have strong campaign finance disclosure regimes. 

Montana, the frontier state heralding the motto “Oro y Plata” (Spanish for gold and silver), sees itself at the frontier of legal challenges seeking to reshape how the wealth of the nation is treated by campaign finance and disclosure regimes across the country. Since 2015, the Montana Disclose Act has withstood several such tests.  In 2018, Montanans for Community Development v. Mangan, Montanans for Community Development (MCD), a 501(c)(4) that sought to send electioneering communications (issue advertisements, also known as “mailers”) refused to disclose its donors in accordance with Montana law. MCD’s two mailers at issue attacked environmentalists and encouraged fossil fuel industry promotion, mentioning candidates in upcoming Montana elections. The 9th Circuit upheld the district court’s finding that the disclosure requirements survive exacting scrutiny by serving a sufficiently important informational interest and being substantially related to the state’s interest.

The 9th Circuit elaborated on its stance regarding disclosure laws in NAGR v. Mangan, another challenge to Montana’s state disclosure requirements. The court cited to Citizens United in championing the information enhancing role disclosure laws play by stating, “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” The court added, “Far from restricting speech, electioneering disclosure requirements reinforce democratic decision making by ensuring that voters have access to information about the speakers competing for their attention and attempting to win their support.”

Even though the U.S. Supreme Court denied cert in both Montana cases, the Supreme Court’s lurch to the right and recent decision in AFP v. Bonta may spell danger to state efforts to achieve transparency in elections and protect the compelling informational interests provided by electioneering disclosures.

Once Thought Secure, Utah Implements Further Election Security

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By Anonymous

Not many things in the world are monitored 24 hours a day, 7 days a week. Bank vaults, hospitals, and military installations are the few that come to mind. However, in this Fall’s midterm elections, Utah’s ballot boxes will be as well.

24/7 video surveillance of unattended ballot boxes are among the several measures Utah’s state legislature has approved as a part of H.B. 313 to secure the state of Utah’s elections prior to the impending 2022 midterms.

House Bill 313, passed in the most recent general session, includes a bevy of changes for Utah voters. Voters are now required to provide proof of identity before voting if they did not provide proof of identification when they registered to vote. Utah is one of eight states that are “all-mail”–they conduct all elections by mail. In 2020, 94% of Utah voters voted by mail. Utah is the only Republican-leaning state that allows all elections to be conducted by mail. Because of H.B. 313, many of these voters will now need to submit a copy of their Utah drivers license or identification.

The legislation, primarily released by Republican Rep. Jon Hawkins, also requires a yearly audit of the voter registration database, limits who may access the election equipment, and reiterates requirements that election equipment may never be connected to the internet. The bill would also require the lieutenant governor to develop requirements for Utah election officials regarding the handling and documentation of “custody” for ballots.

Utah’s legislature passed these increased security measures despite voter fraud being an incredibly rare occurrence in Utah. According to The Heritage Foundation, a conservative think tank, Utah has only had one case of documented voter fraud—in 2008. Utah has allowed voting by mail since 2004. The most common reason ballots are rejected, in fact, do not come from nefarious parties, but instead, from simple mistakes, such as signature issues or unsigned affidavits. Sources have even found that, often times, fraud in Utah may stem from the parents of Latter-day Saints whose children are away on missions.

Despite the security of Utah’s elections prior to the 2020 election and the staggering popularity of voting by mail, the state has been swept up in election misinformation perpetuated by former President Donald Trump’s false claims that the 2020 Presidential Election was fraudulent.

Utah’s state legislature considered 35 proposals in 2022’s general session regarding its election practices—including H.B. 371, which would have removed ballot drop boxes and removed voting by mail as Utah’s primary voting method. The legislation, sponsored by Rep. Phil Lyman failed in committee. While Rep. Lyman alleged voter fraud when speaking in support of H.B. 371, he was unable to produce any evidence of his allegations.

Utah’s Governor and Lieutenant Governor, Spencer Cox and Deidre Henderson, both Republicans, have repeatedly defended the security of Utah’s elections and denounced allegations to the contrary as “absolute falsehoods [that] run counter to Utah law and the foundation of our constitutional republic.”

County Clerks have expressed frustration with H.B. 313’s new requirements. Sherrie Swenson, Salt Lake County’s Clerk, said that the constant surveillance represented an intrusion of privacy, and the new mandate regarding voter identification left her office scrambling to collect the required information from voters.  

The security of Utah’s vote is not the only concern in 2022–election officials said that voters will see armed police officers patrolling election sites in response to a recent increase in political tensions and threats towards election workers.

Changes in Tennessee: New Post-Election Audit Procedures

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By Marc Sloan

Tennessee has enacted a new law revamping its current post-election audit requirements and adding new ones to the list. The new legislation institutes a framework for the state to double check elections run by Tennessee’s 95 counties on a broader scale and in a more comprehensive way through a slate of both consistent and random audits. According to the Brennan Center, post-election audits can help ensure votes are tallied correctly and restore public trust in elections. The bill was passed unanimously in both chambers with bipartisan support, but the Voting Rights Lab says the law will restrict voter access and interferes with election administration through taking away power from local officials and giving it to the state.

Enacted into law in summer of 2022, Tennessee SB2675/HB2585 changes post-election procedures to require a new, additional audit process for select county election commissions. The commissions subject to these new audits will be selected randomly by the secretary of state, who must choose three to audit after each August election and six to audit after each November election. These new audits will begin with the first election in 2024. In the meantime, the law includes a provision requiring Williamson County, home to the Senate sponsor of the legislation, to undergo an audit following each election in 2022, in an effort to test the audit process. The original bill called this a “pilot program,” but this language was amended out.

Current law requires that county commissions who use precinct-based optical scanners must conduct automatic audits of the voter-verified paper ballots cast for the top race on the ballot; this new law retains that requirement, even if those election commissions are not otherwise selected for an audit. These audits must take place prior to the certification of the election. Finally, the law requires that all county election commissions not otherwise selected for an audit or required to complete one as part of the law must conduct a performance audit following the certification of each November election.

The law specifies that the secretary of state shall select the methodology for the random audits. The legislation provides for the secretary to choose from a risk limiting audit, a traditional tabulation audit, or a performance audit. According to the National Conference of State Legislatures, traditional tabulation audits are usually conducted by hand and compare the paper records with the records tabulated by the voting machines. These audits count every vote, whereas risk limiting audits involve counting a sample of votes and analyzing them using statistical methods determined to limit the risk of certifying an incorrect election outcome. A performance audit, also known as a procedural audit, designates a person or group to review the procedures followed during the election and analyze them for compliance and irregularity.

In addition to the audit requirements, the law provides that for elections in 2022 and 2024, the costs of the audits will be paid by the state. Specifically, county election commissions will be reimbursed for their actual costs, which cannot exceed $50 for the audit setup per machine and 35 cents per ballot audited. The fiscal note for the bill indicates the cost to the state to implement these new audit requirements will exceed $500,000 over the next four years. Part of this expense will be to hire a new certified public accountant to keep up with the changes in audit procedures this law requires. With the rollout of this law set for the November 2022 elections, the state and county elections commissions must prepare to comply with this new legislation.

Ranked Choice Double Header: Alaska’s Move to Rank Choice Voting & the Summer Special Election

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By Margaret Dupree

Alaska’s new ranked choice voting system is experiencing a double-header in 2022. In 2020, Alaskans passed Ballot Measure 2, which created the ranked choice system for general elections, while maintaining a single choice system for primaries. Alaskans still vote for the one candidate of choice in primaries, but in general elections they rank the candidates on their ballots. If one candidate receives more than 50% of the vote in the first round of calculations (i.e., they were the “First Choice” candidate for more 50% of voters) the vote tabulation stops and does not move to a second round. If no candidate receives more than 50% of the vote after round one, the candidate with the least votes is eliminated, and the ballots of the voters who chose that losing candidate are recounted using their second choice. This process repeats until a candidate has more than 50% of the vote. 

Alaskans voted for the measure during the 2020 presidential election by a margin of 50.55% to 49.45%; turnout for the 2020 election in Alaska was 60.67%. Despite litigation challenging the implementation of the voting system, the Alaska Supreme Court upheld the narrowly-passed ballot measure in early 2022, making it the voting system for the 2022 midterms. However, due to the death of Rep. Don Young in March 2022, ranked choice voting was implemented even earlier than the midterms to fill the at-large seat in August for the remainder of his term.

While many other municipalities across the United States use ranked choice voting, Alaska is only the second state in the nation to implement it; Maine implemented ranked choice voting beginning in 2018. Advocates of ranked choice voting argue that the system results in more representative outcomes, and helps decrease negativity in election cycles. Another benefit of ranked choice voting systems is that it prevents a candidate winning with only a plurality of voters, as opposed to a typical first-past-the-post system which can result in the winning candidate having a minority of the vote in contentious or crowded elections. However, there are critiques that arise, principally that the system is complicated, and that in a polarized political climate, voters will not want to rank candidates. Especially in the current political climate where some Americans and political candidates deny the 2020 election results, the roll out of a new voting system in Alaska over two elections could highlight whether changing voting systems will help temper partisanship and increase voter trust, or whether voting changes will be vulnerable to election denial and distrust. 

The Alaska special election results seem to demonstrate both how a change in voting systems can result in surprising victories and be vulnerable to partisan motivations. At the end of August, Democrat Mary Peltola won the special election after voting moved into a second round. At the end of the first round, Republican Nick Begich was in third and was cut from the race. His voters’ second choices were then tabulated, and while Republican Sarah Palin had more of those than Peltola did, enough of Begich’s voters ranked Peltola second, pushing her past the 50% threshold. Peltola is the first Democrat to represent the state since 1972, a state that has voted for the Republican presidential candidate 93.8% of the time since 1960, and 100% of the time since 2000.

While a sizable majority of Alaskans supported the voting system, and 66% of voters actually ranked candidates in the election, prominent politicians have called into question the legitimacy of the voting system, claiming that it is a system that benefits the Democratic Party. Notably, Arkansas Senator Tom Cotton tweeted that “60% of Alaska voters voted for a Republican, but thanks to a convoluted process and ballot exhaustion—which disenfranchises voters—a Democrat ‘won.’” This kind of political criticism could hardly be unexpected, especially in the current political climate. However, the criticisms come at a vulnerable time for the electoral system in Alaska; if voters believe these claims are accurate, their trust that their vote counts or that their election laws are fair will decrease. Voters across the U.S. show a decrease in confidence in the democratic system. Distrust in the fairness of election laws and systems is dangerous for democracy, and new changes like those in Alaska are perhaps the most vulnerable.   

The 2022 Alaska midterm election in November is the same cast of candidates as the special election. It will be interesting to see if the attacks and critiques on the system will result in fewer Alaskans participating or adhering to a system that is theoretically meant to boost confidence in their election system. If fewer voters rank candidates on their ballots (i.e., opt to pick only one candidate like a traditional ballot), or even decide not to vote at all, it could indicate that partisanship is still a strong factor in voter choice, and that the efforts to ameliorate polarization and distrust are up for a difficult battle.