“Suggested Principles for State Statutes Regarding Ballot Marking and Vote Tabulation”

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This letter, signed by 20 election cybersecurity experts, was addressed to the Pennsylvania State Senate Committee on Government in response to a request for policy advice, but it applies in any state — especially those that use Ballot Marking Devices for all in-person voters: Georgia and South Carolina; most counties in Arkansas, New Jersey, and West Virginia; some counties in Texas, Tennessee, Indiana, Ohio, Pennsylvania, Kansas, Nevada, and California.

Executive Summary

We believe that the goal of laws, regulations and directives relating to elections must be focused on fairness, security, transparency, and accessibility. Each state should strive to approach the gold standard in every category, so that no reasonable candidate or party may have grounds to object that the process was unfair, insecure, or compromised. The process must be transparent, so the public may be assured the winners won and the losers lost.

We believe that no system is perfect, with each having trade-offs. Hand-marked and hand-counted ballots remove the uncertainty introduced by use of electronic machinery and the ability of bad actors to exploit electronic vulnerabilities to remotely alter the results. However, some portion of voters mistakenly mark paper ballots in a manner that will not be counted in the way the voter intended, or which even voids the ballot. Hand-counts delay timely reporting of results, and introduce the possibility for human error, bias, or misinterpretation.

Technology introduces the means of efficient tabulation, but also introduces a manifold increase in complexity and sophistication of the process. This places the understanding of the process beyond the average person’s understanding, which can foster distrust. It also opens the door to human or machine error, as well as exploitation by sophisticated and malicious actors.

Rather than assert that each component of the process can be made perfectly secure on its own, we believe the goal of each component of the elections process is to validate every other component.

Consequently, we believe that the hallmarks of a reliable and optimal election process are hand-marked paper ballots, which are optically scannedseparately and securely stored, and rigorously audited after the election but before certification. We recommend state legislators adopt policies consistent with these guiding principles, which are further developed below….

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“LWV Files Federal Lawsuit Against AI-Generated Robocalls Sent on the Eve of the New Hampshire Presidential Primary”

Release:

Today, the League of Women Voters of New Hampshire, the League of Women Voters of the United States, and individual New Hampshire voters filed a federal lawsuit against Steve Kramer, Lingo Telecom, LLC, and Life Corporation for voter intimidation, coercion, and deception ahead of the 2024 New Hampshire presidential primary. The defendants used illegal AI-generated robocalls to discourage voters from participating in the primary. The lawsuit, filed in the United States District Court for the District of New Hampshire, seeks to order the defendants to cease engaging in illegal, dishonest, and deceptive tactics nationwide.

Two days before the New Hampshire presidential primary, the defendants sent robocalls to New Hampshire voters with a “deepfake” simulated voice of President Joe Biden to discourage them from participating in that primary. The New Hampshire robocalls urged recipients not to vote in the primary and to “save” their vote for the November 2024 US Presidential Election.  

Read the complaint.

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“Federal Judge Greenlights Lawsuit Challenging Virginia’s Permanent Felony Disenfranchisement Law”

Release:

The U.S. District Court for the Eastern District of Virginia ruled that a lawsuit challenging Virginia’s felony disenfranchisement law has merit and can proceed. The ACLU of Virginia, WilmerHale, and Protect Democracy filed the suit last year on behalf of individual Virginians, who are currently disqualified from voting under Virginia law despite having served their time in prison, as well as Bridging the Gap in Virginia, a Virginia-based organization that provides reentry support for the formerly incarcerated.

The first-of-its-kind suit claims that Virginia’s permanent disenfranchisement for all felonies violates the Virginia Readmission Act—one of several federal laws passed during Reconstruction that prohibited former Confederate states from depriving their citizens of the right to vote except as punishment for a narrow set of felonies. 

After the Civil War, Virginia and other Southern states changed their laws to prevent newly freed Black voters from casting their votes. They did so, in part, by manipulating their criminal codes to expand the types of crimes that triggered disenfranchisement with the specific intent to strip Black people of their voting rights. Today, as a direct consequence, over 300,000 Virginians are disenfranchised due to a felony conviction. This has had the greatest impact on Black Virginians, who make up less than 20 percent of Virginia’s voting-age population, yet account for nearly half of Virginians who are disenfranchised due to felony convictions.

The Court’s decision allows the individual Plaintiffs’ claims under the Virginia Readmission Act to proceed; the Court dismissed Plaintiffs’ separate claims under the Eighth Amendment and Section 1983. The Court also dismissed organizational Plaintiff Bridging the Gap from the case. 

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“To boost Trump, GOP attorneys general charge into battle over state election rules”

Zachary Roth:


With less than six months before voting begins, the legal jousting over the rules for the 2024 election is already underway. And former President Donald Trump’s campaign is getting support from allies who have stayed mostly under the national radar: red-state attorneys general. 

In court filings made in recent months, these chief state legal officers have advanced a string of arguments — some strikingly far-reaching — that appear designed to lay the groundwork for Republican legal victories in the event of a contested presidential vote, or to otherwise boost Trump and the GOP. 

Often led by Alabama Attorney General Steve Marshall, a loose coalition of Republican-led states has submitted briefs urging judges to:

  • Throw out certain mail ballots,
  • Weaken long-standing protections against racial discrimination in voting, 
  • Green-light gerrymandered district maps, 
  • And empower partisan state legislatures, rather than courts, to set election rules.

“These are all setting up an argument, potentially, to say that the 2024 election was flawed because of all these state practices that are questionable,” said Paul Nolette, a political science professor at Marquette University in Milwaukee who has written in depth on the role of state AGs. “The AGs just have been critical in pushing these arguments.”

Marshall’s office did not respond to a request to comment for this story. But last month Marshall also led a coalition of red states in submitting an amicus brief urging the Supreme Court to pause Trump’s election subversion trial tied to the events of Jan. 6, 2021 — a stance that aligned the group perfectly with the interests of the Trump campaign. 

And in 2020, many of these same state AGs, including Marshall, sought to have the courts overturn Trump’s election loss.

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“Wisconsin is lagging behind other swing states in shoring up election policies following 2020 chaos”

NBC News:

Four years ago, Wisconsin arguably was the state where Donald Trump came the closest to overturning the election results.

A barrage of lawsuits aimed at invalidating hundreds of thousands of mostly Democratic votes in the crucial battleground sought to take advantage of certain election policies in the state related to absentee ballots that were cast early and by confined or disabled voters, as well as those where election workers completed certain missing information on the envelopes.

The effort made its way all the way to the state Supreme Court, then controlled by conservatives, which ruled by one vote against Trump’s bid to overturn the results.

And yet, heading into the next presidential election, lawmakers in Wisconsin have done little to prevent a similar scenario from playing out again in the event of a close race.

State lawmakers have failed to enact any measures that would serve to clarify the nuances of absentee ballots that Trump, now the presumptive 2024 Republican nominee, attempted to exploit. They also have not closed loopholes that could provide allies of the former president with openings to insert conspiracy theories and misinformation.

And the Wisconsin Elections Commission, which oversees elections in the state, has issued pieces of modest guidance, but remains flooded with partisan attacks and efforts to impeach its top official.

That all stands in contrast to other swing states that were also targeted by Trump allies in the wake of the 2020 election. In Michigan, Democratic lawmakers have implemented broad reforms to election security and ballot counting. And in Pennsylvania, the Democratic governor recently rolled out an election security task force designed to mitigate threats to the vote this year.

But in Wisconsin, many of the same obstacles, questions and gray areas — regarding drop boxes, disabled and elderly voters, ballot processing and, perhaps most importantly, the protection of an election oversight apparatus that has been inundated by threats and attacks — remain unaddressed, alarming election workers and watchdogs in the state.

“Statewide, I don’t see a lot of change,” said Dane County Clerk Scott McDonell, the top election official in Wisconsin’s second-most populous county. “It’s not like something dramatically different has happened here,” added McDonell, a Democrat.

Jay Heck, the executive director Common Cause Wisconsin, the state’s branch of the national nonpartisan government watchdog group, added that the consequences could be dire if the right mix of circumstances were to emerge on or following Election Day.

“It could all explode,” he said.

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A Surreal Right to Vote: Responding to the Balkinization Symposium

[Cross-posted from Balkinization]

A Surreal Right to Vote: Responding to the Balkinization Symposium

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).
 
Richard L. Hasen
 
When Jack Balkin graciously put together a symposium featuring leading election law thinkers to discuss my new book, A Real Right to Vote, I did not expect that my proposal to amend the U.S. Constitution to affirmatively protect the right to vote would garner universal support. But I also did not expect to be compared to both Don Quixote and a milquetoast version of Paul Revere who wants to develop a plan to fight the British in 50 years. Although all of the eminent commentators—Bruce CainWilfred CodringtonAlex KeyssarSandy LevinsonDerek MullerDan TokajiMichael Waldman, and Emily Zhang— have many positive things to say about this book, a constitutional amendment, and my work more generally (and for that I am grateful), there’s a definite Goldilocksian problem: I am either too bold in my proposals, or too naïve about the possibility of change in our hyperpolarized political era, or insufficiently audacious in not also solving the problem of partisan gerrymandering or junking the entire Constitution and starting over with a constitutional convention.
 
Rather than taking solace for falling somewhere in the middle of the spectrum among these eminent commentators, it is worth asking what these set of critiques tell about three key issues I address in A Real Right to Vote: the nature of the problems with the current state of U.S. elections and election law; the extreme difficulty of achieving meaningful constitutional change, especially in the area of voting rights; and the lack of viable alternatives to pursuing a long term constitutional strategy to expand voting rights.

Continue reading A Surreal Right to Vote: Responding to the Balkinization Symposium
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