October 20, 2020

Federal judge denies injunction, so 7 states won’t be forced to accept internet ballot return

In the case of Harley v. Kosinski, Matthew Harley (and 9 other individuals) sued the election officials of 7 states (New York, Pennsylvania, Ohio, Texas, Kentucky, Wisconsin, and Georgia). The Plaintiffs, U.S. citizens living abroad, said that voting by mail (from abroad) has become so slow and unreliable that these states should be forced to let them vote by internet.

The lawsuit was filed September 30, 2020, requesting a preliminary injunction requiring online ballot return. The state defendants responded in writing by (the Court’s deadline of) October 9. On October 13, Federal district judge Brian Cogan denied the plaintiffs’ motion for a preliminary injunction.

Each of the seven states filed a reply brief arguing (as usual for preliminary injunctions) that the plaintiffs lack standing, they’re suing the wrong parties, they have not established a clear likelihood of success on the merits, and they have not demonstrated irreparable harm.

I will summarize New York State’s reply brief; the other states made similar arguments.

Lack of standing: the New-York-resident plaintiff “cannot establish an injury in fact that is traceable to any challenged conduct of the New York State Defendants”. Mr. Harley is “concerned” that his completed ballot will not be received on time. It was mailed to him on September 18, but he does not say when he received it or when he mailed it back. His “concern” is not an “actual” or “imminent” injury.

Sued the wrong parties: Election officials are just following state law, which does not provide them the discretion to permit internet ballot return. Go sue the post office.

No likelihood of success on the merits: it serves a compelling state interest to avoid internet voting:

  1. The secret ballot is a compelling state interest, to protect voters from intimidation and (vote-buying) fraud. Internet voting cannot protect the secrecy of the ballot.
  2. The security of the voting process is a compelling state interest. “As set forth in the Declarations of Professor Appel, Susan Greenhalgh, Barbara Simons, and David Jefferson . . . there is a broad consensus within the scientific community that the return of ballots via the internet or by fax is not secure and creates a high-risk threat to the integrity of the election process and should not be used in voting now or in the foreseeable future.”

No demonstration of irreparable harm: “the speculative harms identified by … Mr. Harley [and the other N.Y. plaintiff] are partially self-imposed. Their ballots were emailed to each of them in September, but they have yet to mail them back … because of their subjective “concerns”.

Well, indeed, I would be concerned too. Mail service is slower this year, and it may be true (as plaintiffs allege) that international mail is even slower and less reliable. But allowing internet voting–which can be hacked from anywhere and everywhere–cannot be the solution. To reason that “we really want this, so there must be some way to make it secure” is magical thinking.

My own declaration played a (very small) role in this; it was filed by New York in support of their reply brief that I have summarized above.

Judge Cogan explained his ruling as follows (paraphrase):

  • Second Circuit case law imposes a very high hurdle for a preliminary injunction that imposes a mandate on state government. There must be a strong showing of irreparable harm and a clear showing of likely success on the merits.
  • Plaintiffs could not show jurisdiction over the six states other than New York. That mail might pass through the JFK International Processing Center was not a sufficient basis for jurisdiction.
  • Plaintiffs could not show standing because none showed an injury in fact, only a speculative chain of possibility.
  • Judge Cogan referred to the Purcell principle, that courts must be extremely cautious before granting injunctive relief on the eve of an election.
  • The US Constitution does not guarantee overseas voters the right to vote and overseas voters do not have a constitutional right to a particular method for returning a ballot beyond what Congress authorized in UOCAVA. Voters do not take their right to vote with them when they move abroad.
  • A change this close to the election would undermine voter confidence in the system. States need time to set up systems. He acknowledged potential security risks, which have a significant effect on voters’ confidence in the system. Recent problems that New York experienced implementing expansion of absentee voting underscore the concern that any court-ordered changes could be difficult to implement.

A few hours after the Court denied the preliminary injunction, the Plaintiffs moved to dismiss the case, without prejudice. So I guess that’s that.

Election Security and Transparency in 2020

Earlier this month I gave a public lecture at the invitation of the Center for Information Technology Policy and the League of Women Voters. The League had asked, “What can we as voters do to protect our elections and our representative government?”

The video is available here. A longer video, that includes introductions, Q&A moderated by the LWV, and some remarks by the Union County (NJ) Administrator of Elections, is available here.

First, I talk about how the principles of security, transparency, the secret ballot, and trustworthiness were built into American election procedures more than 100 years ago; how computerized voting machines affect these principles; and how the best solution is optical-scan paper ballots, counted by computers but recountable by hand, and with risk-limiting audits.

Next, starting at 12:50 (or 15:36 in the longer video), I talk about Ballot-Marking Devices, and their particular insecurity compared to hand-marked optical-scan ballots.

Starting at 20:18 (or 35:46 in the longer video), I talk about voting during the pandemic, which particularly means Vote By Mail in many states. How do election officials make the processing of absentee ballots secure and transparent, so that we (the public) can trust that it’s secure? I explain how vote-by-mail works (especially in NJ), and how we, the public, should vote in the year 2020. And I’ll explain why in some states we should really vote in person.

Vote-by-mail meltdowns in 2020?

If your state is voting by mail, then you can’t process all the ballot envelopes on November 3rd — it’s just too labor-intensive.

The details vary by state, as every state has different laws, but (basically) for each mail-in ballot received by the county election clerk, they must:

  • Sort the envelopes by “ballot style” (municipality or district) [CA and some other states don’t need to sort]
  • Look up the voter’s information (written on the envelope) in the voter-registration database (to find the signature for comparison, and to record in the database that the voter has voted, so therefore can’t vote twice)
  • Compare the signature and accept or reject the envelope
  • Remove identifying information from the envelope (to ensure the votes cannot be connected to the voter when the envelope is opened); in NJ it’s on a tear-off perforated tab
  • Open the envelope; check that the ballot type is right for the municipality or district
  • If the ballot is deemed unscannable, remake (copy by hand) the ballot
  • Flatten the ballot and put it in the batch for high-speed scanning+counting
  • Run the batch through the optical scanner

States that (usually) vote in-person, with just a few absentee ballots per county, can do all this processing on election day.

States that vote mostly by mail need to do all the labor-intensive parts (that is, all but running through the scanner) well in advance of election day — it is many days of work. Running through the scanner can perhaps be saved for election day (or the days immediately before), because the scanners can process 75 or 300 ballots per minute.

So therefore, vote-by-mail (or mostly-vote-by-mail) states such as OR, UT, CO, HI, WA have developed (over the years) procedures to process vote-by-mail envelopes in a timely way, as the ballots arrive in the weeks before the election. Some states that are mailing ballots to all voters just for the COVID-19 pandemic this year include NJ, CA, NV — and these states have adjusted their laws to allow processing the envelopes in the weeks before November 3rd. That makes sense.

Some states are sticking with in-person voting, but they allow processing of absentee ballots in a timely way (before November 2nd). That should be OK. Indeed, it is OK, as well as AK, AR, AZ, FL, GA, ID, IN, KS, ME, MN, MO, NC, NH, TN, TX, VT.

Some states are encouraging vote-by-mail — that is, they are mailing absentee-ballot request forms to every voter, while also planning for in-person voting. The states that are doing this (with timely processing of absentee ballot envelopes before November 2nd) are CT, DE, IA, IL, MD, MA, NE, OH, RI.

Signature cure: There’s another advantage to processing ballot-envelopes early. In many (but not all) of these states, if a voter’s signature does not match (or is missing), there’s time to contact the voter and let the voter fix the problem so the vote can count. If you process the signatures only on November 2nd or 3rd, that’s not possible.

Potential election meltdown states

Several states are sticking with in-person voting this year, and (as usual) planning to process all their absentee ballots on November 3rd or November 2nd. That will be OK, unless they experience a much greater rate of absentee ballots than usual. If a state is accustomed to 5% of the voters requesting (and returning) absentee ballots, and they get 40%, then it may take them several days after November 3rd to finish counting the votes. These states include AL, KY, LA, MS, NY, ND, PA, SC, SD, WV, WY.

Experts are particularly concerned about PA based on experience in the primary; and because of the late adoption of procedural changes, delayed by lawsuits that have only just been resolved.

Voters in these states should strongly consider taking this advice: vote in person.

Probable election meltdown states

What would be really dysfunctional would be to encourage vote-by-mail, but then to wait until November 3 (or November 2) to start processing those envelopes. That’s a recipe for election meltdown. The states that are heading for this disaster are MI, VT, WI. Iowa, Michigan, and Wisconsin are mailing absentee-ballot-request forms to every voter; but waiting until the last minute to process them after they’re returned. Vermont is even worse: the state is mailing a ballot to every voter, but won’t start processing the returned envelopes until November 2nd.

The Michigan State Senate recently approved a bill to start processing on November 2nd instead of November 3rd. If passed into law, that’s better than nothing — it will certainly help — but it may turn out to be inadequate.

Voters in these states should strongly consider taking this advice: vote in person.

Late ballot arrival states

Some states will count ballots postmarked by November 3rd, as long as they arrive by November 5th, or November 10th, etc. (depending on the state). (And the post office doesn’t “postmark” prepaid “business reply mail”, but can provide other evidence of when it was mailed, so states should be careful about how they use the word “postmark.”)

AK, CA, DC, IL, IA, KS, MD, MN, MS, NV, NJ, NY, NC, ND, OH, PA, TX, VA, WA, WV.

In these states, final election results cannot be known until several days after the election. If the late-arriving ballots are more for one candidate than another, this will cause an apparent shift in election results. That’s a meltdown of a different kind.

No-late-ballot-arrival states

Several states do not accept ballots that arrive after election day, even if postmarked before the deadline. If the postal service is unusually slow this year, then these states may disenfranchise many voters: AL, AZ, AK, CO, CT, DE, FL, GA, HI, ID, IN, KY, LA, ME, MA, MI, MN, MO, MT, NE, NH, NM, OK, OR, PA, RI, SC, SD, TN, VT, WI, WY.

I’m not saying which is the right or wrong answer: accept ballots past November 3rd (if postmarked by the state-set deadline) and suffer from delays in reporting results; or stop accept ballots November 3rd and disenfranchise voters. Pick your poison. A compromise in the middle is to accept absentee ballots dropped off in drop boxes, vote centers, and polling places, as several (but not all) states do.

Polling-place meltdown states

So far, I’ve just been talking about the processing of absentee ballots. But some states and cities, in the past, have experienced hours-long lines at polling places, because of (1) underprovisioning of touch-screen voting machines, or (2) voting machines (or e-pollbooks) failing to turn on in the morning, or both at once.

Famous examples include Cleveland in 2004, and Atlanta in 2020 (primary election). Not coincidentally, both of these cities used touch-screen voting machines–because those are expensive (and slow to vote on), this can lead to underprovisioning of machines compared to how many voters there are.

In contrast, states that use hand-marked paper ballots can (usually) provide enough pens and enough cardboard privacy screens for many voters. The challenge, this year, will be to do this while also social distancing.

Let’s hope that the in-person voting states, this year, can avoid meltdowns (long lines, or COVID transmission) at their polling places.

The data from this article came, in part, from the National Conference of State Legislatures (and this NCSL page too).

[edited 9/22/20: MN is a late-ballot-arrival state]