Our Election System Is Resilient — but Still Has Room for Improvement

On September 10, Microsoft announced that it had detected ongoing cyberattacks coming from Russia, China, and Iran, “targeting people and organizations involved in the upcoming presidential election.” While it noted that the targets identified were “political organizations,” rather than the private companies and election offices responsible for maintaining our election infrastructure, it warned that the attacks were “concerning for the whole ecosystem” and urged election authorities to “harden their operations and prepare for potential attacks.”

The warning from Microsoft is a reminder that our election systems must be resilient against unforeseen problems that are sure to occur this fall. The need for adequate preparation applies to cyberattacks as well as other disruptions, including the coronavirus–related type of breakdowns we saw during the primaries this past spring.

In June of this year, the Brennan Center issued a guide for election officials entitled “Preparing for Cyberattacks and Technical Problems During a Pandemic.” Now, just several weeks before the last day of voting, it is a good time to ask: how prepared are we for a breakdown in our election infrastructure?

The good news is that there has been substantial progress in the last few years, and indeed the last few months, to implement the kind of backup and security features that should allow all voters to cast ballots that will count, even in the event of a successful cyberattack or other unforeseen system failure.

At the same time, there is still more that many jurisdictions can and should be doing to secure our elections over the next few weeks. As difficult as 2020 has been for the administration of elections, we must use the remaining time before the final day of voting to ensure all remaining steps are taken to safeguard a free and fair election. 

Below are some of the most important steps states have taken to ensure voters can cast ballots if problems arise. We focus in particular on the 12 states FiveThirtyEight identified as of September 17, 2020, as most likely to be “tipping point” states in the presidential election: Arizona, Colorado, Florida, Georgia, Michigan, Minnesota, Nevada, New Hampshire, North Carolina, Ohio, Pennsylvania, and Wisconsin. And we conclude the document with more recommendations of what election officials can do between now and Election Day.

1. Auditable Paper Records

Election security experts have long raised alarms about the security of voting machines that do not produce a paper record of each vote cast, as cyberattacks against them could result in undetectable changes in vote totals. Without voter marked paper records, there is no way to independently verify vote totals produced by the machines. Thankfully, in 2020, a record number of voters will cast their vote on a paper ballot.

A Paper Record of Nearly Every Vote

Four years ago, one in five voters cast a ballot on paperless voting machines. Since that time, election officials across the country have transitioned to polling place scanners that read paper ballots (marked by hand, or in the case of a few jurisdictions like Georgia and parts of Pennsylvania, by machine).

Even in jurisdictions that still use paperless machines, an increased demand for mail voting means that voters who would otherwise cast their ballots on paperless machines will instead mark their votes on a paper ballot.

As a result of these changes, we expect that less than 4 percent of voters will cast their ballot on a paperless machine this year. footnote1_0xupw7z 1 We estimate that 3.3–4 percent of votes will be cast on paperless machines in the 2020 general election. To reach this estimate, we relied on Verified Voting data to determine the jurisdictions that will use paperless voting machines as principal voting equipment. We excluded New Jersey from this list since the state will be sending every voter a vote-by-mail ballot and using provisional ballots for limited in-person voting. We relied on EAVS 2018 data to determine the number of registered voters per jurisdiction. We then calculated how many voters would use these machines under a range of absentee voting scenarios. Our low-end estimate assumes that absentee patterns from the 2020 primaries will hold for the general election in “no-excuse” states, and we used past election and public survey data to estimate reasonable absentee voting rates for excuse states. Our high estimate assumes that all paperless states will have the same absentee voting rates in November 2020 as they did in 2016.  And voters will not use paperless voting machines in the tipping point states or in any of the states most likely to determine control of the U.S. Senate. footnote2_0c4dldg 2 According to FiveThirtyEight, as of September 18, 2020, the top eight closest U.S. Senate races are in Alabama, Arizona, Colorado, Georgia, Iowa, Maine, Montana, and North Carolina.

Audits

When officials suspect problems with the software used to count votes, a review of the paper record is a way to check its accuracy. The Brennan Center and others have long argued that jurisdictions should perform routine post-election audits — an automatic check of the paper record, regardless of whether problems are suspected — to ensure the accuracy of election results. Nearly all tipping point states require such audits. While New Hampshire does not require post-election audits, a candidate there can request a hand recount of the paper ballots so long as the margin of victory is less than 20 percent of the total votes cast.

Although the widespread use of audits is reassuring, it should be noted that their quality varies widely. Florida’s audits, for example, have been criticized for reviewing an insufficient number of ballots and occurring after certification of results. At the other end of the spectrum, Colorado requires statewide precertification “risk-limiting audits” — a type of audit that is considered the “gold standard” by security experts. It is designed to count enough ballots to produce a high level of statistical confidence that the paper ballots and voting machine tallies show the same winner. And at least two tipping point states, Michigan and Pennsylvania, piloted statewide RLAs earlier this year. Fortunately, as discussed below, there is still time for many jurisdictions to increase the effectiveness of their post-election audits.

2. More Secure Polling Places

Even with a record number of voters expected to vote by mail this year, recent polls suggest that a clear majority may still vote in person. Election officials have taken steps — including the expansion of early voting and mandatory deployment of backup paper supplies for use in the event of system failures — to ensure that voting can continue in the face of technological failure or other disruptions.

Early In-Person Voting

Early in-person voting, which allows voters to cast a vote in a polling place or election office prior to Election Day, provides an additional option for voters who are unable to vote on Election Day, who do not trust postal delivery, or who do not receive their requested mail ballots in time. This fall, 42 states and the District of Columbia will offer some form of early voting (up from 37 states and the District of Columbia in 2016), including 11 of the 12 tipping point states. footnote1_mpny20h 1 Arizona, Colorado, Florida, Georgia, Nevada, and North Carolina all offer early voting, while Michigan, Minnesota, Ohio, Pennsylvania, and Wisconsin offer in-person absentee voting.

Moreover, since the pandemic, jurisdictions in several states have expanded early voting hours and/or the number of early voting locations, including Florida, Georgia, Michigan, North Carolina, Pennsylvania, and Wisconsin.

By spreading voting over many more days, officials in these states can ensure that an attack against or failure in their election infrastructure on any particular day is less likely to disenfranchise large numbers of voters. For example, if there is any breakdown during early voting, voters can choose to wait for the problem to be fixed or return to vote at another time. Moreover, with more people turning out during early voting, fewer voters are affected by disruptions on Election Day itself.

Backup to Mitigate Electronic Pollbook Disruption

Electronic pollbooks, or e-pollbooks, are laptops or tablets that poll workers use instead of paper lists to look up voters. They are currently used in 41 states and the District of Columbia.

When functioning as intended, e-pollbooks expedite the administration process, shorten lines, lower staffing needs, and save money. Unfortunately, there are no federal security standards for the use of these systems, and security experts have raised concerns about their vulnerability, especially when they are reliant on wireless connectivity. In addition to these security concerns, breakdowns in these systems have resulted in hours-long lines and high use of provisional ballots in polling places around the country.

Having e-pollbook backups at the polling place allows poll workers to confirm voters’ eligibility in the event of a breakdown, which diminishes the potential for long lines and may minimize the need to issue provisional ballots. Of the 12 tipping point states in the presidential election, 9 require a paper backup to be available in the polling place. footnote2_pe3aeyt 2 Georgia, Michigan, Minnesota, Nevada, New Hampshire, North Carolina, Ohio, Pennsylvania, and Wisconsin. Arizona requires “a printed roster or other contingency plan.”

Of the other two, some counties in Florida, including Palm Beach, require such backup, and Colorado’s limited use of in-person voting (as a result of its comprehensive mail ballot voting system) means the absence of a backup would be less of a potential problem than it would be elsewhere.

Emergency Ballot Requirement in Case of Machine Failure

In five of the tipping point states, all or at least some voters use direct-recording electronic (DRE) or ballot-marking device (BMD) voting machines to make their selections. This contrasts with the remaining seven states, where voters mark their ballots by hand. footnote3_y3nna5j 3 Georgia, Nevada, North Carolina, Ohio, and Pennsylvania.

BMDs and DREs present unique security challenges. When they fail, long lines can develop if voters are forced to wait while the machines are repaired or replaced. In contrast, where ballots are marked by hand and then fed into scanners, machine failure should not prevent people from voting; ballots can be stored while machines are repaired.

Fortunately, four of the five tipping point states where voters use machines to make selections require emergency ballots to be available at polling places so that voting can continue while machines are down. While Nevada does not have a statewide requirement for emergency paper ballots, the state is sending a mail ballot to all voters, so in-person voting (and the disenfranchisement that might occur if voting machines fail on Election Day) is likely to be more limited than it otherwise would be.

The number of emergency paper ballots required in case of system failure varies by state. On the more careful side, North Carolina requires that precincts that use BMDs stock emergency paper ballots in an amount equivalent to 50 percent of total registered voters. This should easily allow all voters to continue to vote during peak voting periods, even if all machines in a polling place are down. By contrast, Georgia requires emergency paper ballots for just 10 percent of voters, which would not be sufficient during the worst-case scenarios. Of course, there is nothing that prevents jurisdictions from exceeding these minimum requirements, which we urge them to do. footnote4_uoobfu6 4 Beyond North Carolina and Georgia, Pennsylvania requires emergency paper ballots for 20 percent of its registered voters. Ohio, whose secretary of state issued a directive governing the issue, requires its counties using DREs (i) to stock emergency paper ballots equivalent to 15 percent of the total number of voters in the highest voter turnout year in a presidential election starting in 2008, and (ii) separately, to have at least 15 percent more provisional ballots (emergency paper ballots) than the highest number of provisional ballots cast in that precinct in 2008, 2012, or 2016.

Provisional Ballots

Provisional ballots allow voters to cast a ballot when their eligibility to vote cannot be confirmed. The ballots are kept separate from other ballots and counted later once election officials can determine that the voter was eligible.

There are at least two reasons to expect that there may be greater need for provisional ballots this year. First, for voters who request mail ballots but decide instead to vote in person, many states will require they vote by provisional ballot. footnote5_brjr90f 5 At a minimum, Florida, Georgia, Ohio, Pennsylvania, and many counties in Arizona require the use of provisional ballots in this situation.  It is reasonable to assume that there will be an unusually large number of such voters this year.

Second, if there is a successful cyberattack against a state’s voter registration database or electronic pollbooks, voter registration information or voting history could be corrupted (by removing voters from the rolls, for instance). Under those circumstances, provisional ballots might represent the only opportunity to prevent long lines from forming and jeopardizing people’s ability to vote. There is no public evidence that database integrity has been violated in recent months, but it is well-documented that agents of the Russian government targeted and infiltrated some voter registration databases in 2016.

All the tipping point states except Minnesota and New Hampshire (which have same day registration) use provisional ballots for a variety of eligibility concerns, although none have statewide requirements specifically defining an adequate provisional ballot supply for their polling locations.

Adequate and Backup Staffing Measures

As Covid-19 spread across the country this spring, many states learned that their disaster plans were insufficient, and tens of thousands of voters were disenfranchised. In the intervening months, jurisdictions around the country have developed processes that should reduce similar problems this fall.

One of the biggest failures was a lack of a backup plan to ensure sufficient staffing for in-person polling locations during a pandemic. A shortage of poll workers who canceled at the last minute because they feared exposure to Covid-19 during the primaries resulted in a large number of polling location closures. At the same time, and sometimes because there was insufficient staffing, many polling locations experienced technical failures with voting machines and electronic pollbooks and were unable to recover in time to avoid hours-long lines.

Jurisdictions are taking a number of actions to avoid similar problems this fall. In Michigan, the state is recruiting poll workers statewide, directing applicants to jurisdictions that need the most extra assistance, and building a reserve list of poll workers that can be deployed throughout the state on Election Day in case of last minute cancellations. Officials in some states, including Florida and North Carolina, are providing public employees with paid leave to work at the polls on Election Day. And some professional associations, such as the Kentucky Bar Association and the Ohio Accountancy Board, now offer continuing education credits to members who serve as a poll worker. In Georgia, the state announced a plan to have a trained technician onsite at every polling location.

Election officials across the country are thinking creatively and aggressively campaigning to get polling locations the help they need for November. They’ve been helped by a coalition of companies around the country who have recruited their own employees to serve at the polls, adding hundreds of thousands of extra workers.

3. Mail Ballot Submission Options

For this year’s elections, mail voting rates have spiked across the country, including in jurisdictions with historically low mail ballot usage rates like Georgia, North Carolina, and Pennsylvania. In the wake of recently implemented internal changes by the U.S. Postal Service, many question whether mail ballots can be delivered on time. In addition to these unanticipated internal challenges with delivering mail ballots, a cyberattack exploiting vulnerabilities in the USPS’s IT network could cause delivery-related problems impacting the election.

While there are legitimate concerns about how problems at the post office could impact the ability of voters to cast their ballots on time, states have taken steps to ensure voters can receive their ballots quickly, know when and whether their mail ballots have been sent or received, have multiple options to return it (by mail or in person), and confirm their mail ballot has been submitted effectively. These actions should help ensure that post office disruptions do not disenfranchise large numbers of voters.

Online Absentee Request Portals to Speed Up Timelines

In most states, the mail voting process relies on a back-and-forth between election officials and voters — voters must submit an application; election workers must process the application and send a ballot to the voter; and the voter must fill out and return that ballot to the election office. All of these steps must be completed by Election Day. During the primary elections, states experienced significant mail delays, which lengthened these delivery times and led to tens of thousands of ballots arriving after the deadline.

Many states have acted to speed up this process by allowing voters to submit mail ballot applications through a secure online portal, which removes the post office from the first step and gets ballots into the hands of voters faster. Online applications also allow for faster processing of applications at the election office. At least 24 states allow voters to submit applications through an online portal. Among the tipping point states, Georgia, Michigan, Minnesota, and North Carolina all launched online application portals after the pandemic started, while Arizona, Florida, Pennsylvania, and Wisconsin already had these options in place.

Other states, like Colorado and Nevada, remove the application step altogether and automatically mail ballots to all voters.

Ballot Tracking Tools

Around the country, states have broadly adopted mail ballot tracking. The technology allows voters to confirm whether (and when) their ballot has been sent by the elections office, that their returned mail ballot has been received by the elections offices, and that their ballot has been successfully processed. Ballot tracking provides faith in the system and, consequently, enables people to vote in person if the ballot cannot be returned in time). All 12 tipping point states offer ballot tracking to their voters. footnote1_cfxj9nm 1 Arizona, Colorado, Florida, Georgia, Michigan, Minnesota, Nevada, New Hampshire, North Carolina, Ohio, Pennsylvania, and Wisconsin.

Multiple Options for Mail Ballot Drop-Off

To address voter concerns about lengthened postal delivery time of mail ballots, all tipping point states provide a way to return mail ballots without relying on the post office, in some cases providing multiple options. Alternative submission options include drop off of mail ballots in drop boxes, at election offices, at early voting sites, and on Election Day at polling places. footnote2_1g5j42k 2 In Ohio, the Democratic Party has challenged the secretary of state’s directive limiting drop boxes to one per county. In light of this directive and its desire to provide a greater number of opportunities for dropping off mail ballots, Cuyahoga County has been seeking to allow drop off at libraries. Arizona, Colorado, Florida, Georgia, Michigan, Minnesota, Nevada, Pennsylvania, and Wisconsin allow voters to drop off mail ballots in drop boxes. Some offices in New Hampshire allow voters to drop off mail ballots in drop boxes that must be supervised at all times. Minnesota, New Hampshire, and Pennsylvania allow voters to drop off mail ballots at election offices. Arizona, Colorado, Florida, some counties in Georgia, Michigan, Nevada, North Carolina, and Wisconsin allow voters to drop off mail ballots at early voting sites. Arizona, Colorado, some counties in Georgia, Nevada, New Hampshire, and some cities in Wisconsin allow voters to drop off of mail ballots on Election Day at polling places.

What More Can Be Done?

With 42 days until Election Day, large-scale changes to election systems and technology are not possible in most cases. Nevertheless, there are important steps that election officials can take to help make sure that every voter can confidently cast a ballot.

1. Educate voters

More than 500,000 mail ballots were rejected during the primary elections this year. The most common reasons for rejections were that the envelope was missing information such as a signature, or the ballot arrived after the deadline — problems that will only be exacerbated by the larger number of voters using mail ballots during the general elections. These deficiencies can be avoided, or at least mitigated, through public education campaigns that encourage voters who want to cast mail ballots to request and send in their ballot as early as possible; sign their ballot envelopes and satisfy any other requirements that states may have, such as a witness signature or notary; and use secure drop boxes and in-person ballot return options, particularly within a week of Election Day. Encouraging voters to request and return mail ballots early will both yield a lower rejection rate and reduce the stress on election workers and systems. Likewise, election officials should encourage voters who want to vote in person to vote early, reducing stress on Election Day polling place systems and allowing officials to resolve any issues well before the last day of voting. 

2. Supply more paper backups

Every part of the polling place voting process that relies on technology should have a paper failsafe in place, allowing voters to continue casting ballots until the technology issue can be resolved. As previously noted, paper failsafes include backups for electronic pollbooks, emergency paper ballots for jurisdictions where voters use machines to make selections, and provisional ballot supplies in case voter eligibility cannot be confirmed. Where gaps exist, election officials should make sure that each polling place will be prepared with supplies on Election Day. Despite the elevated need for provisional ballot supplies this year, most jurisdictions either have no provisional ballot supply requirement or they tie the requirement to past provisional use. Printing additional provisional ballot supplies is an obvious failsafe with limited downside. There is still time to print higher levels of provisional materials for 2020, and extra materials can simply be saved for future elections.

In addition, election officials should make sure that poll workers know how to use backup paper resources when needed. During the Georgia primary, voters waited in long lines while machines were down because some polling places ran out of emergency paper ballots, while in other polling places poll workers did not know how to locate or use these paper ballots. Increased supply requirements and more robust training can help address these concerns.

3. Conduct more robust post-election audits

While every tipping point state is required to conduct a post-election audit, election officials should consider going above and beyond minimum statutory requirements where there is room to do so. For example, the Georgia state election board passed a regulation to surpass statutory requirements for 2020 by conducting a risk-limiting audit. Officials in Michigan and Pennsylvania have similarly conducted pilot risk-limiting audits over the past year to prepare for more routine use in future elections. Even where there is not time to conduct a risk-limiting audit, officials should consider whether they can make their current procedures more robust to provide greater public confidence in outcomes.

4. Secure and test election systems

Finally, there is still time to implement some basic measures to protect election systems and to test and verify that everything works before Election Day. In particular, election officials should

• change passwords on key accounts 7–10 days from the election;
• review and update any IT resiliency and continuity of operations plans;
• ensure that key personnel have up-to-date contact information for cyber incidence response support; and
• review social media accounts for content and reach to voters

Each of these steps should increase security in the final days and weeks of the election while requiring relatively few resources during an extremely busy time.

Conclusion

No election is perfect. We should expect that there will be some problems as tens of millions of Americans vote this fall under unprecedented and extraordinarily difficult circumstances. Ultimately, the most important question is not whether Election Day problems — whether caused by a Russian cyberattack, an unexpected surge in Covid-19, or simple administrative error — will occur. Rather, it is whether the system is resilient enough to overcome those difficulties so voters can cast ballots that will count.

When it comes to casting and counting of ballots, jurisdictions around the country — and critical tipping point states in particular — have taken important steps to ensure that their systems are robust and that cyberattacks or other technical problems should not disrupt the ability to conduct a legitimate election. In the coming weeks, states must effectively execute these resiliency plans and take the appropriate additional measures that they have the time and resources to implement.