December 9, 2021

Another 2020 lawsuit over internet voting

Last week I summarized 4 lawsuits filed in 2020 over internet voting, in VA, NJ, NY, NH. Then I learned there was another in North Carolina.

In 2020 the North Carolina Council of the Blind sued the State Board of Elections, demanding that the Board offer “alternative format absentee ballots allowing private and independent method of absentee ballots that is accessible for Plaintiffs and others with vision disabilities.”

The Plaintiffs did not specifically demand internet ballot return. Instead, they demanded compliance with the Americans for Disabilities Act that requires “reasonable modifications in the Absentee Voting Program to avoid discrimination against Plaintiffs on the basis of disability.” The Plaintiffs also explained methods that other states were already using to accomplish this [all excerpted verbatim from the Complaint]:

  • Maryland developed an online marking tool that allows voters to access and mark their absentee ballots on their computers. . . . Although the absentee ballot must still be printed, signed, and returned to the voter’s local board of election, voters need not sacrifice the secrecy of their ballots to receive assistance with signing because the signature page prints separately from the ballot.
  • Oregon, Wisconsin, and New Hampshire have employed an accessible electronic voting system that can be used for both in-person and absentee voting. Using the platform, voters can access their absentee ballots through their web browser and mark their ballots on their computers. Voters then print their ballots and mail them back to their local boards of election where their votes are counted. … The platform used by these states has been released as open source technology, meaning that it can be used by the NCSBOE, or by any other entity, free of charge.
  • West Virginia has similarly provided an electronic absentee ballot delivery and marking tool to voters with disabilities. Voters access the electronic absentee ballot tool via a web portal, where they are guided with on-screen instructions on how to open and complete the electronic ballot. After completing the ballot, West Virginia law provides that qualifying voters may either (1) print and mail their absentee ballot to their county clerk, or (2) submit their absentee ballot electronically to their county clerk directly through the web portal.
  • Alaska [has] have provided accessible remote voting options for some elections . . . an electronic absentee ballot that can be completed and transmitted using the voter’s computer.
  • Michigan made its UOCAVA PDF ballots accessible and available to blind voters . . . [but no electronic return of voted ballots]
  • New York . . . agreed to email accessible absentee ballots to qualified voters with disabilities [but no electronic return of voted ballots]

In summary, the Complaint laid out a variety of ways in which other states had complied with the ADA, but did not specifically request internet ballot return. The motion for preliminary injunction was similarly open-ended.

The Court, apparently, felt that such an open-ended injunction would be difficult to enforce. And apparently North Carolina was already using Democracy Live’s system for UOCAVA voters, and said so in court. So the Court’s order read, “Defendants are hereby ORDERED to open the Democracy Live portal to plaintiffs and other blind voters as expeditiously as possible so that it may be utilized for the November 3, 2020 election.”

A year later, in August 2021, the State agreed to settle the case, having agreed to use the Democracy Live “accessible electronic voting portal” through which “the State Board provides visually impaired voters the ability to request to vote absentee, to mark their absentee ballots, and to return their absentee ballots.” In addition they “identified . . . vendors who are capable providing Large Print, Braille, or accessible electronic formats of absentee ballots and other communications related to voting processes.”

Judge Boyle’s final judgment omits any mention of Democracy Live, and orders “The North Carolina State Board of Elections (“NCSBE”) shall ensure that blind voters can request, mark, and return their absentee ballot through accessible electronic means in the 2021 municipal elections (whenever held) and in all subsequent elections.” (emphasis mine) So it appears that internet voting for blind voters in North Carolina currently has the force of law behind it.

It’s too bad that an opportunity was lost here. Last week I wrote, “it would be a good idea for the National Federation of the Blind to remove internet ballot return from its set of demands, and focus on the other reasonable and practical reforms that they have been requesting (or suing for).” And here is a case where the North Carolina Council for the Blind had already done just what I suggested, demanding “reasonable modifications in the Absentee Ballot program” but not specifically demanding the insecure, unsafe, unverifiable extreme of internet ballot return.

The North Carolina State Board of Elections then unnecessarily chose to include internet voting in their response, because their vendor (Democracy Live) made that convenient for them. (Democracy Live does that even more insecurely than you might have imagined! And each of their competitors does internet voting insecurely in its own surprising way!) And then Judge Boyle enshrined this expedient into an Order.

I am not a lawyer. But a lawyer friend writes: This judgment is only a legal way station; don’t assume this is anything near a permanent order, if other evidence is later adduced undermining its soundness. And really, the Plaintiffs’ initial motion was very poor lawyering in one critical respect: the request for “reasonable modifications” with examples from other States was basically punting to the Federal Judge to do their thinking for them, for the court to supply the terms for a precise order that for some inexplicable reason, they did not craft and then support in their brief.  It’s not surprising that, given the lack of expertise in the federal courts on internet voting insecurity, election security ambiguities, and various NC election administrative requirements, that the court (likely law clerks) jumped to the Democracy Live solution, which NC had already adopted for a different purpose.