mail-in voting

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.

Discrimination in Washington State Redistricting

Election Law Society · December 5, 2022 ·

By Megan Bodenhamer

Washington State has rather progressive and cutting-edge voting and election laws. For example, Washington State was one of the pioneers for statewide mail-in voting, long before the COVID-19 pandemic. In fact, voter turnout in the state is consistently above the national average. Washington State also has one of the nation’s few bi-partisan redistricting committees. However, despite these policies—that, on the surface, may seem modern and equitable—there are problems plaguing Washington State’s elections that are far from idyllic. Specifically, Washington State has faced many allegations of voting discrimination against its Latino population.

On January 19th of this year, a lawsuit was filed in the United States District Court for the Western District of Washington alleging intentional discrimination against Latino voters by the Washington State Legislature and the Washington State Redistricting Commission. The UCLA Voting Rights Project, the Campaign Legal Center, and residents of Yakima (hereafter “Plaintiffs”) filed the lawsuit against the Washington State Secretary of State, the Speaker of the Washington State House of Representatives, and the Majority Leader of the Washington State Senate. The Plaintiffs allegethat “[t]he Washington State Redistricting Commission . . . selected redistricting plans for Washington’s state legislative districts that dilute Hispanic and/or Latino voters’ ability to elect candidates of choice.” The allegations arise out of Yakima, Franklin, Adams, and Grant counties. The lawsuit alleges that the Washington State Redistricting Commission intentionally “cracked” these Latino populations and mixed them with a heavily white population, thus diluting their votes. Lines were drawn through the City of Yakima cutting across the areas where Latino populations live, while still including blocs of white voters that often vote against Latino-preferred candidates. Further exacerbating the problem, Latino voters in the included area have a low turnout rate, while those excluded have a higher rate. This case has not yet been tried, but it will certainly be a pivotal decision for the longevity of the newly created districts in Washington.

Gerrymandering is not the only place where Latino voters in Washington State face challenges. Due to its long-time mail-in voting system, Washington State employs a signature matching system to deter voter fraud. Unfortunately, in high-Hispanic counties, Latinos were four times more likely to have their mail-in ballots rejected for signature issues. As a result of these signature denial disparities, the League of United Latin American Citizens and the Latino Community Fund of Washington have filed suit against Benton, Chelan, and Yakima counties for violating the 14th and 15th Amendments. The lawsuit claims that the signature-matching policies are flawed because they are subject to the discretion of local election workers and have inconsistent results over time, harming Latino voters in Washington State.

However, there has also been successful litigation in Washington to defend Latino rights. In 2022, the UCLA Voting Rights Project settled a claim against Franklin County under the Washington Voting Rights Act, a recently passed state provision. Franklin County admitted fault in the settlement, conceding that they were in violation of the Act. Franklin County previously had an at-large voting system where a Latino-preferred candidate had never won. Under the settlement, Franklin County Commissioner elections will be required to use single-member districts beginning in 2024. While this may be a win for Latino voters in Franklin County, there is much work to be done in other counties, across the state of Washington, and across the United States.

What on Earth is Going on with Florida? Explaining the Purcell Principle and Ongoing Litigation Over SB 90

Election Law Society · October 28, 2022 ·

By Emily Baker

There has been significant news coverage on court proceedings covering Florida state election law. Recent articles include titles such as “Florida appeals court questions ruling on elections law” and “An appeals court questions a rulingagainst parts of Florida’s election law.” The main questions are, what happened and what do these reports mean?

Starting from the beginning: Florida’s Senate Bill 90 was signed by Governor Ron DeSantis, live on Fox News, on May 6th, 2021. It received immense criticism, because its effect would generally make it more difficult to vote by mail. The bill was immediately challenged by multiple sets of plaintiffs—the Harriet Tubman Freedom Fighters, the League of Women Voters, the Florida NAACP, and Florida Rising Together—each bringing slightly different claims. The lawsuits were consolidated into one case by the district court, challenging three colorable issues:

A provision regulating the use of drop boxes for collecting ballots criminalized dropping off more than two ballots besides those from immediate family members and required monitoring by election personnel. As a result, access to drop boxes was limited to posted hours of operation.
The Registration-Delivery Provision requires third-party voter-registration organizations to deliver voter-registration applications to the county where an applicant resides within fourteen days, and the Registration-Disclaimer Provision specifies information that third-party voter-registration organizations must provide to would-be registrants. Third-party voter-registration organizations can be fined up to $50,000 per year for violating either of these provisions, a stark increase from the previous $1,000 limit per year.
The Solicitation Provision prohibits the solicitation of voters within 150 feet of a drop box or polling place.

Plaintiffs argued that each of these provisions discriminated against voters on the basis of race, in violation of the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act; specifically that the Registration-Disclaimer Provision compelled speech in violation of the First Amendment and that the Solicitation Provision was unconstitutionally vague or overbroad in Violation of the First and Fourteenth Amendments.

Focusing on the racial discrimination, the lower court held that SB 90 “runs roughshod over the right to vote, unnecessarily making voting harder for all eligible Floridians, unduly burdening disabled voters, and intentionally targeting minority voters—all to improve the electoral prospects of the party in power.” The court found that the challenged provisions were unconstitutional and unenforceable because they limited access to the ballot. For example, people frequently help elderly voters by dropping off their ballots for them and is a common practice in church groups. Additionally, the limited accessibility to ballot drop boxes can favor white-collar voters who have greater flexibility in their jobs. In consequence, the District Court placed the state of Florida on preclearance for ten years, which means that the state would have to seek federal approval to “preclear” any attempt to pass new laws specifically related to drop boxes, line-warming (a commonly employed practice of giving out food and water to voters waiting in line), and voter registration organization activities.

The 11^th Circuit Court of Appeals, however, “stayed” the district court’s injunction in May of 2022 on the basis of the “Purcell principle,” which is the idea that courts should not change election rules on the eve of an election because doing so could confuse voters and create problems for officials administering the election. The 11th Circuit employed the principle here, because the lower court’s injunction implicated voter registration, which was currently underway, and required the state to retain poll workers when the next statewide election was nearly four months away.

In addition, the 11th Circuit took issue with the district court’s analysis of the historical background and its conclusion that “Florida has a grotesque history of racial discrimination.” The district court supported the conclusion by the recounting of several acts of violence against Black voters in Florida, notably the massacre of more than thirty Black Floridians on Election Day after a Black voter went to the polls in 1920. The 11th Circuit’s holding was in part based on the principle that “old, outdated intentions of previous generations” should not “taint [a state’s] legislative action forevermore on certain topics” and that the district court ruling failed to take into account the presumption of legislative good faith.

While critical, this was only a temporary stay pending appeal. These new headlines, while flashy, only address questions judges asked in the oral argument and not the merits or the 11th Circuit’s final decision. SB 90 will be in effect (at least) until the 2022 midterm elections are over, likely making it more difficult for many Floridians to vote by mail.

Montana: Changes To Voting Laws In Wake of 2020 Election

Election Law Society · March 23, 2022 ·

By: Kelsey Nickerson

Montana is one of the largest states in the county, but unlike its counterparts Texas and California, it is home to relatively few people and only accounts for 3 electoral votes. The state had some close elections as of late, and with a relatively small population, a small number of votes can play aa large part in election results. As in most states, the 2020 Election inspired Montana to enact much more stringent voting laws relating to registration, identification, and absentee voting. Many of these laws, despite the obvious problematic result of disenfranchisement of indigenous voters, were upheld under Section 2 of the Voting Rights Act in the Supreme Court’s decision in Brnovich v. Democratic National Committee this past summer. In Montana, however, a new group has challenged the restrictive bill: young voters.

HB 506, along with instating various redistricting criteria, requires that “[u]ntil the individual meets residence and age requirements, a ballot may not be issued to the individual and the individual may not cast a ballot” via mail. Though it may seem like a reasonable limitation to place on mail-in voting, it does burden a certain portion of the population. Young people, whose participation has surged in Montana over the past few years, object to stringent absentee requirements that target both their age and transient nature. For example, young Montanans who will be 18 and eligible to vote on Election Day, but will not reach that age before the extremely early deadline to request a mail-in ballot, are prevented from voting if they can’t return to their district on Election Day. Additionally, residency requirements require 30 days of presence in a new location before an absentee ballot may be requested. With large portions of teens in Montana moving both away from home and out of state in the fall, there is little room for error in requesting an absentee ballot, and sometimes the request is impossible.

Nevada Expands Mail-In Voting Post 2020

Election Law Society · March 21, 2022 ·

The 2020 presidential election was historic for many reasons, among them, the special safety measures that state election administrators had to suddenly implement in response to the COVID-19 pandemic. In its effort to ensure voter safety in the 2020 election process, the Nevada legislature passed a law that would require all counties to mail absentee ballots to registered voters during emergency situations. The law aimed to make it easier for Nevadans to vote without having to physically go to the polls. The law also provided some procedural flexibilities in that it permitted the collection of mail-in ballots by third party collectors.