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Accessibility vs. Security: Online Voting in Puerto Rico

Election Law Society · December 30, 2022 ·

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.

Indiana’s confusing record of voter registration

Election Law Society · February 20, 2012 ·

by Shanna Reulbach

Indiana’s recent history with voter registration is somewhat baffling, to say the least.  The state seems to swing like a pendulum between liberal and conservative measures and priorities, and compliance and defiance of federal mandates that extend the availability of registration materials to new populations.  An illustrative juxtaposition would be that the rhetoric of voter fraud is often at the forefront of Indiana election debates, yet the legislature authorized online voter registration in 2009, when many viewed the use of computer technology as enabling fraud.

The first subject that comes to any election law junkie’s mind in discussing Indiana’s election code is the state’s voter ID requirement and the U.S. Supreme Court’s upholding of the law in its 2008 decision, Crawford v. Marion County Election Board.  In that case, Indiana asserted a governmental interest in preventing voter fraud at the polls, pointing to its “unusually inflated list of registered voters” as a major source of concern.  While Crawford was not centered on voter registration, the state’s arguments reveal a lack of confidence in the voter registration process’ ability to prevent fraud.

Fast-forwarding to this past year, two other events mark the voter registration debate.  First, in March, a grand jury indicted Secretary of State Charlie White with three counts of voter fraud: “filing [a] fictitious registration,” “voting where not registered,” and “fraudulent registration.”  White was registered at his ex-wife’s home and voted in that district, even though he had moved away.  Ironically, the Secretary of State serves as the chief election officer.  The Indiana Recount Commission determined that White was eligible to run for that office, but he is still awaiting his criminal trial.  This scandal has shined a spotlight on registration issues, but fraud has not been the rallying point.  All of the parties involved with the accusations, White, his Democrat opponents, and the Commission, agree that registration residency requirements have to be liberalized to account for nontraditional living configurations. [Read more…] about Indiana’s confusing record of voter registration

Weekly Wrap-Up

Election Law Society · October 15, 2010 ·

Did Michelle Obama violate Illinois state election law? After Michelle Obama turned in her early voting ballot yesterday, she stopped outside the voting booth to take pictures with people in the area, including an electrician, Dennis Campbell. According to Campbell and a reporter who was nearby, Michelle stated that it was very important that he vote “to help keep her husband’s agenda going.” Illinois state law (Sec. 17-29 (a)) states that “No judge of election, pollwatcher, or other person shall, at any primary or election, do any electioneering or soliciting of votes or engage in any political discussion within any polling place, within 100 feet of any polling place.” White House press secretary Robert Gibbs responded to the accusation by stating that “I don’t think it would be much to imagine, the First Lady might support her husband’s agenda.”

Charges were filed against a Maryland man, Jerry Mathis, for distributing an official-looking sample ballot that turned out to be fake.  The false ballots alarmed several candidates when they saw that the wrong matchups were checked.  Under Maryland law, Mr. Mathis could be facing a maximum of one year in jail and a $25,000 fine. [Read more…] about Weekly Wrap-Up

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