Wyoming

Digital Democracy: Voting and Election Law in the Age of Blockchain: Part One

Election Law Society · March 13, 2023 ·

By Marcel Massarani

Everyone has heard of cryptocurrency or blockchain technology in some fashion, but few have taken it as seriously as a regulatory, economic, and democratic tool as the State of Wyoming. The Legislature made headlines last year when it became the first state to recognize decentralized autonomous organizations (DAOs) and provide them with a specialized LLC business structure. DAOs are democratically controlled entities that exist on the blockchain, governed by a form of “digital constitution” executing rules and user commands through smart contracts. DAOs range from as simple as a shared bank account to as complex as an entire business hierarchy or political action committee, purely existing in the form of code. Former Presidential Candidate Andrew Yang famously launched the Lobby3 DAO last year which is designed to be just that: a decentralized members-based lobbying organization, implementing a one-token one-vote system to distribute funds, selecting recipients, and directing policy. Wyoming is also the site of “CityDAO,” an experimental 40-acre parcel in Wyoming that is owned and operated via a DAO with over 10,000 “citizens.”

Despite Wyoming’s forward-thinking policies on technology and finance, its election procedures are far from perfect. Based on independent analysis, Wyoming scores poorly for ease of voting and has less than stellar scores for ballot security. In a state with less than 600,000 people, even small inaccuracies or voter suppression can greatly sway the outcome of elections. Wyoming limits voting registration to the DMV, offers no online registration, does not offer permanent mail voter lists, or online ballot tracking. Furthermore, the state added a voter ID requirement after the 2020 elections, requiring requisite documents and a trip to the DMV to obtain them, and lacks reasonable accommodations for those who forget them. Lastly, the state does not conduct regular election-wide audits. Currently, Wyoming legislators are seeking to strip the Secretary of the State’s powers to oversee elections, because the Republican nominee is a firm denier of the 2020 election results. Thus, an electoral system that is provably secure and promotes social trust and efficient participation has never been more important in the state of Wyoming. I propose that a blockchain-enabled voting system is perhaps the best solution, although it will be an evolving experiment.

During the 2020 elections the influx of mail-in ballots resulted in delayed counting and reporting of ballots which, in turn, led to agitation of partisan groups and increased distrust in the process, including from members of the State’s legislature and political candidates. Amid the chaos, discussion of digital voting was renewed, but quickly ignored, in favor of mail in voting. There is no shortage of stories detailing faulty voting machines or malicious hackers attempting to influence elections, and few were comfortable with the idea that a web portal or biometrically secured login would suffice to dispel these concerns. Meanwhile, those in the blockchain community were left wondering why the rest of the world didn’t see the solution hiding in plain sight.

Blockchains, while generally associated with cryptocurrencies, are truly just digital ledgers of data that can record anything from financial transactions to votes, authenticate each entry, and execute automated commands based on that data. They provide a form of “digital constitution” or rules that manage the system and constrain human actors. This ledger is distributed and simultaneously stored on every device connected to it, making it inclusively accountable and transparent. This provides a sense of trust in the inherently trustless environment of digital systems. Each user may audit the entire history of the system, checking that each recorded piece of data is authentic and non-duplicative. The system is processed without a central party, thus relieving concerns of mishandling votes. As Jacob Beckett says in his Law Review Article Blockchain Voting: WY Not, “[i]mplementing a transparent, secure, and faster manner of casting and counting votes seems to be the only option in avoiding a repeat of what will surely come to be known as one of the most tumultuous voting cycles in history.”

The use of technological advancements in voting is not a novel concept. The Help America Vote Act of 2002 (HAVA) grants federal funds to states that modernize voting equipment, given compliance with several requirements (omitted for brevity), none of which are precluded by a blockchain-enabled system. The most relevant requirement here is that each state must adopt uniform standards for what constitutes a vote within the system. Wyoming’s Election Code does not directly define what constitutes a “vote.” However, Wyoming is one of several states that requires certification from the Election Assistance Commission (EAC), established under HAVA, which certifies the hardware and software of voting systems. The EAC guidelines define a “valid vote” as being “from a ballot or ballot image that is legally acceptable according to state law.” In Wyoming, a “ballot” is defined as “the cardboard, paper or other material upon which a voter marks his votes.” While the Wyoming definition of “electronic voting system” is viewed to permit recording, tabulating, and counting of non-physical votes, the definition for a “voting device” is constrained to those devices or methods that record votes on ballots, as defined above. Therefore, while there is legal validity to the proposed blockchain-enabled system, clarifications should be made to include votes cast explicitly on a digital ballot from a blockchain-enabled system.

Despite the certification process under the EAC, Wyoming has spent considerable effort chasing down errors and bugs in their voting system. In 2020, Wyoming received a significant sum of funding from the HAVA Grant Program to “improve the administration of elections for Federal office . . .” and nearly a third of the allocated funds were directed at identifying cyber vulnerabilities within the State’s system. Half of the grant was set aside for improving the voter registration system, specifically citing data encryption and secure functionality—both aspects of the system that a blockchain-enabled system would not only improve, but definitively solve. Despite these funds and the goal of improving voter registration, no online registration system has been made.

Currently, Wyoming utilizes paper ballots and automatic tabulating equipment that provides a paper record. However, based on a lack of post-election audits, among other factors, the State received a “C” grade from the Center for American Progress. Specifically, the procedure was found to have left the State open to undetected hacking and other errors on election day. As for auditability, while all ballots are accounted for at the precinct level, counties are not required to compare and reconcile precinct totals with countywide composite results. Blockchains are not only “hack proof” when properly designed, they could be programmed to automatically perform functions like audits or population checks. Regardless of one’s views on auditing, the lack of it creates distrust in the electoral process.

To make matters worse, Wyoming uses voting hardware and software from ES&S, the company that provides over 60% of the voting systems throughout the country. ES&S thus arguably serves as a centralized point of failure, the elimination of which is one of the most apparent benefits of a blockchain-enabled system. The decentralized nature of blockchain technology improves the security of the system by precluding any centralized decision-making or collusion. A centralized privately managed system also creates the perception of corruption or manipulation, harming social trust in elections. Collectively, these inefficiencies or security flaws, coupled with Wyoming’s in-state expertise on blockchain, demonstrate that it is a perfect jurisdiction to experiment with blockchain-enabled voting systems, which very well could lead to greater social trust and decreased cost, as well as more secure elections. While the majority of constituents may need time to trust or understand the technology, the same can be said for the current electoral process which not only relies on centralized computerized systems, but also fallible partisan actors to secure elections and determine results. The simple fact of the matter is that nobody in the history of this country has ever been able to verify for themselves that their vote was cast and counted as they intended. With a blockchain based solution, the immediate ability to self-verify, correct, and immortalize a vote will be so apparent that trust will inevitably follow. Each voter, from their cell phone, can see their entire electoral history as well as the pseudonymous votes cast by the entire electorate. Additionally, there will be zero information asymmetries such that no partisan actor can claim superior knowledge or access to data than the public, thereby reducing the partisan incentive to cast doubt on election results.

Opinion: Wyoming Secretary of State Nominee Chuck Gray Wants Residents to Cowboy Up and Vote in Person

Election Law Society · January 2, 2023 ·

By Hunter Hoffler

Wyoming Republican Chuck Gray, the recent nominee for Wyoming Secretary of State, claims he intends to make significant changes when he arrives in the State’s capital of Cheyenne. Like many Trump-backed candidates, Gray believes the 2020 presidential election was a fraud and fears his State is rife with voter fraud as well.

Gray ran on the promise that he would curtail voter fraud despite only three convicted cases of voter fraud in Wyoming since the year 2000. To combat this issue, Gray has openly stated that he wants to ban ballot drop boxes in his State, instead opting for the traditional practice of collecting “all paper ballots.” The presumed Secretary-elect would prefer in-person, paper-ballot voting. In Gray’s words, “The fact that a few counties have moved off of paper ballots . . . is really wrong.”

Despite a heavily Republican constituency in Wyoming, Gray asserts that local elections can still become compromised through nefarious ballot collection practices. As a result, Gray’s campaign for Wyoming Secretary of State fixated on improving election integrity and demonstrating the likely impacts of voter fraud. Hoping to impact his constituency, Gray repeatedly aired the controversial and critically ridiculed documentary “2000 Mules” by Dinesh D’Souza at his campaign stops.

The question remains: what authority will Gray have to implement his election integrity agenda? While in the state legislature, Gray also campaigned on, and promulgated bills to, improve election integrity. In 2021, Gray and his colleagues passed Wyoming’s Voter ID Law, which required residents to possess a valid state or federal form of identification to vote in person. Fortunately for those who oppose Gray’s agenda as Secretary of State, he alone will not be able to implement radical change to Wyoming’s voting procedures. In fact, within the scope of voting and voter registration, the Wyoming Secretary of State’s duties are relegated mainly to the administration and oversight of elections. In other words, to implement sweeping changes to the way Wyoming residents can vote, Gray will need to go through the State’s legislature and adhere to federal voting regulations.

The more immediate concern (should Gray be sworn in as Wyoming’s Secretary of State) is staff turnover in the Secretary of State’s office, particularly amongst those experienced in administering elections. Reducing the collective experience of the group administering elections could lead to trouble in upcoming state and federal election cycles should a hitch in the process occur. To date, one official has vacated her position based on concerns over Gray’s views.

The nation’s voters are broadly divided along party lines regarding the ratification of election security legislation – which is generally a priority of registered Republicans – or election openness legislation – which is usually a priority of registered Democrats. However, Wyoming legislators on both sides of the aisle are concerned enough with Gray’s positions on the 2020 Presidential election and Wyoming election security to propose legislation that would strip his soon-to-be office of its duties to oversee elections.

Opponents of Gray’s proposals fear that the growing number of local and federal candidates running on platforms of election insecurity may spread fear that the election process is flawed. Mistrust in the election system may, in turn, lead to uncertainty, harassment, and lack of participation at the polls.

What is clear is that there should be a bipartisan coalition that works to ensure elections are safe for the people of Wyoming. What remains to be seen is whether Chuck Gray and his principles will be part of that conversation.

The Cost of an Absentee Ballot

vebrankovic · November 30, 2020 ·

By Timmer McCroskey

Be honest, when was the last time you went to the post office? For me, it’s been at least six months since I physically went into any post office. With the ability to buy postage labels online and drop off packages in blue boxes located throughout my town, I rarely need to go into a physical location. Next question, do you have stamps on hand? I do, but only because I try to send my Grandma a card every month. For many people, especially in rural Wyoming, the post office isn’t a frequent stop on the errand list and not everybody has a reason (or funds) to purchase stamps. However, to mail in an absentee ballot in Wyoming, you are required to place the correct amount of postage on the envelope. Wyoming is one of 33 states that does not pay for the return postage of an absentee ballot.

It’s Time for the Wild West to Join the 21st Century: An Argument for Implementing Online Voter Registration in Wyoming

Election Law Society · October 16, 2020 ·

By: Timmer McCroskey

In 2016, I was a young 20-year-old attending Arizona State University. When election season arrived, I decided to register in Wyoming as I still considered Wyoming my primary domicile. As all my Arizona friends around me registered to vote online or by filling out one of the many clipboards passed through campus, I was surprised to learn the only way to register outside of Wyoming was by printing out a form and then taking all my proper identification to a notary for authorization. Finding a notary, especially one that would do it for free (hello poor college student), was surprisingly difficult and took time and energy away from school. After taking the papers to the notary I then sent them to my local county clerk’s office, only for them not to be processed by the deadline. I could have flown back to Wyoming the day of the election and registered at my polling place, but that was unreasonable, expensive and time-consuming. Being my first primary election, I was shocked that I was being turned away from voting for such arbitrary and archaic requirements.

WY: Proposal Allows County Residents to Vote in City Elections

Election Law Society · October 19, 2016 ·

By: Gordon Dobbs

In many states, people who live just outside of a city’s borders and who are affected by the city’s laws are nevertheless forbidden from voting in the city’s elections. The Supreme Court considered whether this practice is constitutional in 1978 in the case of Holt Civic Club v. City of Tuscaloosa. In Holt, the Court held that extraterritorial jurisdiction (ETJ) statutes that extend municipal police, sanitary, business, and other similar regulatory powers over those living outside municipal boundaries are indeed constitutional, even when those residents cannot vote in municipal elections. The Court held that those who lived outside of Tuscaloosa’s borders had no constitutional right to vote in Tuscaloosa elections, and that it was reasonable for the city of Tuscaloosa to extend certain services to those residents and require them to pay fees to fund those services. This form of ETJ has its roots in post-World War II development booms on the fringes of urban areas in the United States. Some states have been fairly aggressive in their implementation of ETJ: Texas, for instance, allows cities of over 100,000 to extend their ETJ for five miles outside of the city’s boundaries, and cities have used this power to regulate everything from lot size to fireworks use in the county.