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Federal Appeals Court Considering Lawsuit Seeking More Secure Voting Machines

The Brennan Center is asking the court to let a case go forward that would make elections safer from cyberattacks.

When there’s a close elec­tion in Chat­tanooga, Tennessee, the losing candid­ate can go to court and ask for a recount of the ballots. If the judge thinks it’s warran­ted, the ballots will be coun­ted by hand. But in Memphis, Tennessee, that can’t happen because there are no paper ballots to review. That’s because Shelby County, where Memphis is located, still uses paper­less “direct-record­ing elec­tronic” voting machines, also known as paper­less DREs.

These machines only keep a digital record of votes, making them vulner­able to cyber­at­tacks. Fortu­nately, they’re being phased out — but not every­where, and that’s why they’re the subject of a federal lawsuit aiming to require their retire­ment as soon as possible. Tennessee is one of eight states expec­ted to still be using paper­less DREs as the primary way for voters to cast their ballots in some juris­dic­tions in 2020. They are used every­where in Louisi­ana and in most of Indi­ana, New Jersey, and Missis­sippi as well.

In 2018, a group of Shelby County voters and the nonprofit Shelby County Advoc­ates for Valid Elec­tions (SAVE) sued the state of Tennessee, Shelby County, and vari­ous elec­tion offi­cials, arguing that the county’s use of paper­less DRE machines inter­feres with their right to vote. The district court dismissed the lawsuit because, accord­ing to the court, the risk of future harm to voters is too spec­u­lat­ive and not trace­able to the elec­tion admin­is­trat­ors. 

On Thursday, the Bren­nan Center and Trout­man Sanders LLP filed a friend-of-the-court brief on behalf of 13 current and former elec­tion offi­cials in 10 states asking the Sixth Circuit Court of Appeals to reverse that ruling. The brief explains that there is in fact a substan­tial risk for the plaintiffs’ votes to not be prop­erly coun­ted given the evid­ence of the continu­ing threat of attacks on voting systems in Tennessee and nation­wide, as well as the prob­lems inher­ent in paper­less voting machines.

There are numer­ous examples of attacks on the nation’s elec­tion infra­struc­ture in recent years. For instance, hack­ers success­fully attacked Knox County’s elec­tion website on elec­tion night in May 2018 and preven­ted offi­cials from post­ing elec­tion results as expec­ted. They also obtained unau­thor­ized access to the county’s serv­ers and data.

Cyber­at­tacks are not simply one-time incid­ents. In 2018, nearly half of local govern­ments repor­ted exper­i­en­cing cyber­at­tacks at least daily, with many local govern­ments report­ing an increased or consist­ent number of attacks, incid­ents, or breaches when compared to the previ­ous year. The Senate Intel­li­gence Commit­tee confirmed that through­out 2016, “cyber actors affil­i­ated with the Russian Govern­ment conduc­ted an unpre­ced­en­ted, coordin­ated cyber campaign against state elec­tion infra­struc­ture.” And national secur­ity offi­cials believe that the 2020 elec­tion is “the big game” for adversar­ies look­ing to attack Amer­ican demo­cracy.

The best prac­tice to provide a minimum baseline of secur­ity for voting machines is a paper record that allows for mean­ing­ful post-elec­tion audits. With no paper records, Shelby County voters cannot be assured that their votes are being prop­erly coun­ted.

Our brief also explains that elec­tion offi­cials are respons­ible for the main­ten­ance of elec­tion systems and provid­ing a reas­on­ably secure voting system to voters. Voting systems without paper trails simply fall below a minimum stand­ard of profes­sional respons­ib­il­ity. 

States have made substan­tial progress in repla­cing paper­less voting equip­ment in the past few years. In 2016, 14 states used paper­less voting machines as the main polling place equip­ment in at least some counties and towns. Today, that number is down to 11 states, and the Bren­nan Center expects it will drop to no more than 8 by 2020.

Even so, that means a signi­fic­ant number of voters may not have a paper record of their vote in 2020. We estim­ate that as many as 12 percent of voters — some 16 million people — will use paper­less equip­ment in Novem­ber 2020. This compares to 20 percent of voters — 27.5 million people — in 2016.

Paper records will not prevent program­ming errors, soft­ware bugs, or the inser­tion of corrupt soft­ware into voting systems. Indeed, they will only have real secur­ity value if they are used to check and confirm elec­tronic tallies during post-elec­tion audits. However, of the 42 states that should have paper records of every vote by 2020, 17 are not currently required to conduct post-elec­tion audits before the certi­fic­a­tion of elec­tion results.

Paper­less voting machines repres­ent an unac­cept­able threat to the integ­rity of elec­tions. They make it impossible to perform hand recounts or robust post-elec­tion audits to ensure that vote tallies were coun­ted accur­ately. Fortu­nately, there is an easy fix: replace them.