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May 06, 2024 ABA Task Force for American Democracy

Increasing Trust in Our Elections

Edward B. Foley

This Working Paper identifies and discusses a variety of ideas for steps to strengthen American democracy by increasing trust in our elections and our election processes. The goal is to capture as broadly and creatively as possible new approaches and fresh thinking that can help overcome some of the obstacles that have inhibited the capacity of government in the United States to address the nation’s needs on behalf of its people. In developing the following set of possibilities, a premium has been placed on bold “outside the box” proposals, which currently are not at the forefront of public conversation on electoral reform but which over time might gain traction and salience and once adopted would make a major impact.

Given this approach, it is inevitable that some of the proposals listed below cannot realistically be adopted before the November 2024 general election. Despite the challenges, there remains great urgency in bolstering the procedures of democracy in time for voting in the upcoming presidential election. Of the various substantive concerns facing our democracy, the issue of public trust is the one easiest to address by short-term measures that still could be adopted before the November 2024 general election—although the challenge of improving public trust will undoubtedly continue beyond then.

Problem Statement

To what extent does the public not trust our elections or election processes? What are the reasons behind that, and what can be done to increase the trustworthiness of our elections?


Multiple surveys over the course of the past few years have consistently shown that Americans’ trust in our elections has reached an all-time low. An ABC News poll conducted in 2022 found that only 20% of the public are “very confident” about our election processes being fair and accurate with 59% of Republican voters saying that they were either "not so confident" or "not confident at all" in our elections. Perhaps not surprisingly, the reasons for the lack of trust vary by the voter’s political affiliation. According to a recent study by the Yankelovich Center for Social Science Research at the University of San Diego, 51% percent of Republicans and 35% percent of independents lack trust in voting by mail. They are also concerned that ineligible voters are casting ballots and that some voters are casting more than one ballot. In contrast, Democrats’ main concern is that eligible voters who should be able to cast ballots are facing obstacles with things like voter ID requirements in places where it is difficult to get an ID, taking away chances for early voting and Sunday voting, and having to stand in long lines to vote. A lack of trust in our elections has a threefold impact. First, it gives rise to doubts about or challenges to election outcomes. Second, people who don’t trust our elections often choose not to participate in them or in our political process. And third, it undermines public support for democracy in general.

Innovations and Policies Aimed at Increasing Trust Before November of 2024

A Revitalized System for Voter Registration List Maintenance

One issue that decreases trust in elections is a concern that some voters may be registered and voting in two or more states, or they aren’t registered in the state in which they are voting, or that a voter is actually casting a ballot under the name of a deceased individual. To address this problem, the nonprofit Electronic Registration Information Center (ERIC), was founded in 2012 by a bipartisan group of chief election officers from seven states (Colorado, Delaware, Maryland, Nevada, Utah, Virginia and Washington) with assistance from The Pew Charitable Trusts. ERIC is a membership organization funded and governed by its member states. At present, 24 states are members of ERIC along with the District of Columbia. ERIC was founded on the belief that by the states using state-of-the-art data matching technology, a robust and safe data sharing program built on widely accepted information security standards, and an unprecedented commitment to cooperation would vastly improve their ability to maintain accurate voter rolls. Unfortunately (and unfairly) ERIC has been vilified by activists on the right, to the point where many states that previously were members withdrew their membership. In its place, activists on the right are promoting as an alternative they are calling “EagleAI NETwork,” but organizations on the left (including the Brennan Center) are panning it as an “antidemocracy tool.”

The widening gap between the left and the right on this crucial issue necessitates the difficult work of finding common ground over a method of verifying and updating multistate voter registration databases that both sides can accept and trust. Probably like the Northern Ireland peace accords, the details of the common ground cannot be determined definitively in advance, but instead must emerge through a process of bilateral, mediated negotiation in which both sides feel fairly represented. This process won’t be easy at all because both sides are predisposed to despise anything embraced by the opposite side. But it is essential that the process be genuinely bilateral if the goal of reducing distrust is to be achieved. The challenges facing ERIC demonstrates that the issue of trust is not solely about the merits of the matter, but instead involves perceptions rightly or wrongly held. ERIC can’t be replaced by an ERIC equivalent imposed on one side by the other. ERIC can be replaced only by a new system that it is truly the joint product of input from both sides.

Just like there can be preconditions to peace negotiations, there can be some non-negotiable stipulations to the start of this bilateral process—such as accepting basic scientific methods of empirical inquiry. If non-negotiable premises cannot be mutually accepted, then there is no hope for this “peace” process. But if so, then there is no hope for improving trust in elections, since one side would be unwilling to accept the basic ground rules necessary for achieving trust from the other side. One must hope that this is not the case, but the only way to find out if any such “peace” negotiations between the two sides is possible is to undertake the process of trying and seeing what emerges.

To be truly effective, this needs to be a multistate effort, because significant issues concerning voter registration list maintenance result from the movement of voters across state lines. Nonetheless, it is possible that this reform could develop first in some states where this kind of “peace” process would find most favorable conditions and, if successful there, could branch out to additional states. It is also conceivable that a truly bilateral national organization, like the federal government’s Election Assistance Commission, might be able to pursue something along these lines if there were sufficient political will to do so. While the chances of getting a widely agreed-to national solution in place before the 2024 elections is slim, starting conversations in communities around America about the need for such a system and agreeing on a process to address this issue would be a good starting point and would also be a strong signal to the American public that it can and will be done.

End-to-End Tracking Systems for Absentee (Mailed) Ballots

FedEx, UPS, and other delivery services provide tracking numbers that enable customers to track packages from the beginning to the end of their journey through the shipping system. The system for absentee ballots should be able to accomplish the same, so that both the voter and the government can track an absentee or mailed ballot from the time it gets sent to the voter to the time it is received back and counted by the government after being cast by the voter. End-to-end ballot tracking increases each voter’s confidence that they will be able to cast their absentee ballot and have it counted and it also increases the general public’s trust that only valid absentee ballots are being cast and counted. (If the voter to whom the ballot was sent must verify that this voter is the one who cast and returned it, it eliminates the possibility that the ballot could have been intercepted and fraudulently cast by someone else.)

According to the Washington Post, as of the 2022 election about half the states (in at least some of their localities) used this kind of ballot tracking. The technology behind this tracking was provided by two private-sector companies (Ballot Scout and BallotTrax) both of whom developed their versions of this tracking technology for local governments to adopt.

This simple and relatively easy technology to adopt could be put in place in many more states and/or counties prior to the 2024 elections and increase voter trust in the process. In addition, or alternatively, citizens should pressure Congress to require it for all future elections.

Statistically Sound Auditing of Both Tabulation and Eligibility.

In the past decade or so, the field of election administration has developed and started to implement the concept of a “risk limiting audit” or “RLA”—an idea first developed by statisticians. The idea is to use statistics to determine the number of ballots necessary to retabulate the election outcome in order to assure with sufficient confidence that the entire count of all ballots identified the correct winner of the election. Short of a full manual recount of all ballots (which would be overkill except in especially close elections), properly conducted risk limiting audits are a necessary component of every election—no matter how lopsided the initially reported result—to have adequate assurance of the outcome’s accuracy. The number of ballots necessary to retabulate will vary with the reported margin of victory and will be much smaller in the case of an apparent landslide. If no discrepancy is shown in the initial retabulating of ballots, the audit can end; but if there is a discrepancy, then depending on its magnitude, the risk-limiting audit will require retabulating more ballots (again, a statistically determined amount) in order to assure the correct result.

While a risk-limiting audit is a necessary element of a trustworthy election, it is not sufficient insofar as the auditing process involves only retabulating previously counted ballots. While assuring accuracy of the count, this retabulation does not address whether the previously counted ballots were entitled to be counted—or whether ballots that were not initially counted because of an official determination that they were ineligible might have been mistreated because this determination was mistaken. Thus, a full auditing procedure aimed at assuring voters (and the public as a whole) that the election was conducted properly, so that the candidate declared the winner was the candidate entitled to win based on all the ballots cast, would go beyond the retabulation required by a risk-limited audit to include a statistically sound reexamination of ballot eligibility determinations—both the determinations that counted ballots were indeed eligible and the determination that rejected ballots were indeed ineligible. Again, the number of eligibility determinations necessary to review would vary depending on the initially reported margin of victory, and this number would increase during the auditing process insofar as incorrect eligibility determinations were discovered.

According to the National Conference of State Legislatures, only three states mandate RLAs: Colorado, Rhode Island, and Virginia. An additional nine have adopted pilot RLA programs: Georgia, Indiana, Kentucky, Maine, Michigan, Nevada, New Jersey, Pennsylvania, and Texas. Four states permit, but do not require, RLAs: California, Ohio, Oregon, and Washington. In some states, RLAs have been adopted by statute; in other states, by administrative orders.

If expanded to encompass the accuracy of eligibility determinations as well as tabulation, the practice of statistically sound auditing could produce a major increase in both the inherent trustworthiness of election results and thus potentially the public confidence in the accuracy of election outcomes. But it would be essential that sound auditing practices be conducted in a thoroughly bipartisan or nonpartisan manner. The experience after the 2020 election with the pseudo-audit conducted by the ultimately discredited “Cyber Ninjas” firm demonstrates an audit must be genuine, and the competing candidates and political parties must embrace the principles and practices of sound auditing procedures.

The idea and implementation of RLAs has being gaining momentum in recent years and thus the prospect of broader adoption is very promising. Although not as expensive as full recounts, they do require adequate funds. Insofar as many states already devote insufficient resources to election administration, it may be necessary for Congress to provide funding for adequate auditing for the practice to be embraced nationwide.

Updated Rules for Poll Watching & Voter Eligibility Challenges

An essential element of confidence in elections and their results is the ability of political parties and candidates to have representatives observe the operation of the voting process and make objections if they see something they think is improper. This ability to observe and object includes the right to challenge a voter who shows up at the polls if the observer knows that the voter is not in fact entitled to vote. But this observation and objection process cannot work if it is abused, and it has been increasingly subject to abuse in recent elections. Accordingly, there needs to be a renegotiation and recommitment to the process to make it function properly again.

As with other bilateral measures, this would have considerable effect if it could be achieved. Republicans currently claim they are provided insufficient opportunities to observe and object, while Democrats argue that Republicans simply wish to engage in voter suppression tactics. This innovation also could be profitably combined with the “Democracy Passport” innovation described below, because the observation process would be much more straightforward and there would be much less basis for challenging a voter’s eligibility if proof of eligibility would be as simple as showing one’s Democracy Passport.

Adjusting Deadlines & Practices to Maximize Prompt Election Night Results

Some states, including major battleground states like Pennsylvania, have an outdated law that prohibits election officials to begin processing absentee ballots until Election Day itself. As demonstrated in 2020, this law is exceptionally dangerous because it causes excessive delays in the reporting of election results, sometimes by days. Moreover, because Republicans and Democrats use absentee voting at different rates, which candidate is in the lead can change as more and more absentee ballots get counted. Although every additionally counted ballot is valid and needs to be included, and the fault of the delay is solely the outdated law, the change in which candidate leads between Election Night numbers and those in following days inevitably breeds distrust. Even worse, this distrust can be exploited and exacerbated by an unscrupulous candidate—to devastating effect.

Some states, including red states like Florida and Ohio, process absentee ballots as they arrive and thus are able to report the bulk of absentee vote totals early on Election Night, avoiding the Pennsylvania-type problem. The need to eliminate the kind of law that Pennsylvania has is a view universally shared among experts in the field of election administration. The only obstacle, but it is a serious one, is pure partisanship. The polarization in Pennsylvania is so deep that it is unclear if this essential reform can be adopted in time for the 2024 election. (See recent Pittsburg Post-Gazette story subscription required.)

Enhanced Election Night Reporting to Explain Fluctuating Returns

The news media made major strides in 2020 to educate the public on how vote totals roll in on Election Night and how to understand the process by which these news outlets come to project a winner in an election when counting the votes remains incomplete. For example, most major news outlets made the important shift from reporting percentage of precincts with completed counts (which was an increasingly misleading statistic because of the large increase in mailed ballots not included in Election Day precinct-specific counts) to reporting estimated percentages of total ballots counted. Most outlets also became more cautious about projecting a winner too soon, with some also importantly distinguishing between races “too early to call” from those “too close to call.”

But as improved as the process was in 2020 compared to previous elections, additional trust-enhancing improvements still could be made. For one thing, Fox called Arizona too early in the 2020 presidential election, which had significant negative repercussions for the election’s aftermath. It is unclear how Fox News and other more conservative-leaning networks will report the Election Night results in 2024. All news outlets could and should make it clearer that they have no official role in declaring winners, that when they “call” a race it is merely their own best projection of what will later be an official result. In this respect, the media could do much more to educate the public that even when all the votes are officially counted, that official count is still preliminary and provisional until it is verified through what is known as the “canvassing” process. Only when the canvassing process ends in the certification of the results is there an official winner.

Even in the current climate of fragmented—or “siloed”—news sources, the media plays a crucial role in the public’s understanding and thus ultimately acceptance of election outcomes. Responsible news outlets need to continue their efforts to do the best they can in this regard. The ABA and the legal profession are well-positioned to explain to the media the importance of transparency and clarity with respect to the laws that govern the official counting of votes and declaring of winners as are a host of other democracy-oriented NGOs.

Short Public Service Videos on How Elections Work in Each State

Very few Americans understand how our elections work behind the scenes. Citizens who vote by mail typically have no idea of what happens to their ballot after it is dropped in a drop box or put in a mailbox. Common questions can include: How do local election officials make sure an envelope doesn’t contain two ballots? Are the signatures checked, and if so, how? How are the ballots tabulated? Similarly, if a voter votes in person by a machine, questions can include: How does that machine work? Is a paper trail also created? Who has access to the machine? While this would need to be a state-by-state project, putting out short public service videos that could be played on local television and distributed on social media has the potential to remove the mystery from many election processes and increase public trust of our elections. Setting up such videos on a national basis would be a large and complex project, but if appropriate non-profits in each state worked with their state’s election officials it could be a manageable task with videos being made available months in advance of November 2024.

Longer Term Innovations and Policies Aimed at Increasing Trust

A “Democracy Passport” for Every American Citizen

Americans historically have feared the creation of a national ID card. But cultural conditions change, and the development of “Real ID” may have predisposed Americans to the necessity of a nationally structured ID system. If branded as a “democracy passport” and made available to every American upon turning 18 years old, or becoming a naturalized citizen, it might become a publicly accepted way to create a national form of voter identification that could easily be transported from state to state when voters moved from one state to another.

This innovation if adopted also would be transformative insofar as it would create a nationally accepted basis of trust for the validity of every voter. There would be no basis for claiming that non-citizens would be illegally voting, or “dead” voters. The passport would guarantee every eligible voter’s entry into the system and prohibit entry by anyone else lacking the passport. This innovation would need to be adopted by the federal government, presumably as a result of legislation enacted by Congress. Democrats would need to be willing to come together with Republicans in order to craft a bipartisan bill to establish this new passport system that both sides would trust.

Digital Photos as Part of Voter Registration & Electronic Pollbooks

Current cellphone and related technology can make it feasible for every voter to submit a digital photo at the time the voter is registered to vote. If the voter personally doesn’t have a cellphone, a public library or other local government service can provide the necessary digital photo technology and then upload it to the state’s voter registration database as part of an online registration system. The voter’s digital photo then can be included in the state’s electronic pollbooks, so that when the voter appears at the polling place to vote, the pollworker can match the voter’s actual face in person to the digital photo in the electronic pollbook. With this system, there is no need for the voter to bring to the polls a photo ID; the voter needs to bring only themselves, as the photo is already in the system. This will prevent disenfranchisement of any registered voter who lacks a photo ID when going to vote.

Congress would need to amend the National Voter Registration Act (NVRA) to permit adoption of this innovation, as current law prohibits states from requiring photos at time of registration. The NVRA was adopted in 1993, before the development of contemporary cellphone photography. It is much easier, and even more trustworthy, for voters to provide a digital photo when they register to vote, rather than needing to bring a photo ID to the polls, and therefore the debate over photo ID should be inverted so that the focus is on providing a photo at time of registration, or when they need to change their voter registration for any reason. This innovation would provide the trustworthy security of a photo ID without the potential negative impact of disenfranchising voters who do not carry a photo ID with them to the polls.

Train and Credential Certified Public Accountants to Be Certified Election Auditors

While post-election audits can improve public confidence, most election agencies are headed by elected officials (county clerks, secretaries of state, etc.). This arrangement raises the issue of “information asymmetry”, namely where one group (elected election administrators) has more or better information than the other group (in this case, voters). In a variety of other situations involving information asymmetry, the asymmetry is addressed by engaging independent outside experts to audit the process in question. One way to improve voter confidence in election outcomes might be to establish a framework by which individuals with auditing experience are trained and then credentialed as election auditors. William Kresse, the individual behind this idea and a Commissioner on the Chicago Board of Election Commissioners and an Associate Professor of Accounting, Auditing and Fraud Examination, recently formed a nonprofit corporation the “Institute of Election Auditors” or IEA for precisely this purpose. The IEA seeks to standardize the discipline of auditing elections in a neutral and nonpartisan way by developing programming and processes to train Certified Public Accountants (CPAs) to be election auditors, and then credential them as Certified Election Auditors (CEAs). A bipartisan Board of Directors, which consists of CPAs, academics, election officials, and election attorneys, has been put in place to ensure that IEA remains true to the pursuit of its mission without regard for partisan interests, pursuing the ideal of a more transparent and reliable democratic process for all American elections. These independent trained and certified individuals might add yet another important layer of trust to our elections.

This document has been submitted to the Task Force for American Democracy for consideration and has been posted and/or circulated for information purposes only. The views expressed herein represent the opinions of the author(s) and not those of the Task Force or the ABA. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. This publication is freely available to download, copy and distribute provided there is attribution to the ABA Task Force for American Democracy, and provided this notice is reproduced on all copies.

    Edward B. Foley

    The Ohio State University

    Edward B. Foley holds the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs its election law program. He is a contributing opinion columnist for the Washington Post, and for the 2020 election season, he served as an NBC News election law analyst.

    His most current book, Presidential Elections and Majority Rule (Oxford University Press, 2020), excavates the long-forgotten philosophical premises of how the Electoral College is supposed to work, as revised by the Twelfth Amendment to the U.S. Constitution, and then uses this historical analysis to provide a feasible basis for reform of state laws that would enable the Electoral College to operate according to majority-rule objectives it was designed to achieve.

    His book Ballot Battles: The History of Disputed Elections in the United States (Oxford University Press, 2016) was named Finalist for the David J. Langum, Sr. Prize in American Legal History and listed as one of 100 “must-read books about law and social justice”.

    As Reporter for the American Law Institute’s Project on Election Administration, Foley drafted Principles of Law: Non-Precinct Voting and Resolution of Ballot-Counting Disputes, which provides nonpartisan guidance for the resolution of election disputes. He has also co-authored Election Law and Litigation: The Judicial Regulation of Politics (Wolters Kluwer 2014).

    During his fellowship at Stanford University’s Center on Democracy, Development, and the Rule of Law, Foley wrote Due Process, Fair Play and Excessive Partisanship: A New Principle of Judicial Review of Election Law, 84 U. Chicago Law Review 655-758 (2017), which was cited in briefs in Gill v. Whitford and Benisek v. Lamone (the Supreme Court gerrymandering cases). In addition to his Washington Post opinion columns, his op-eds and other essays have appeared in the New York Times, the Atlantic, Politico, and Slate, among other publications, and he frequently writes online commentary on election law issues of public interest.

    Foley clerked for Chief Judge Patricia M. Wald of the U.S. Court of Appeals for the D.C. Circuit and Justice Harry Blackmun of the United States Supreme Court. He has also served as State Solicitor in the office of Ohio’s Attorney General, where he was responsible for the state’s appellate and constitutional litigation.

    Professor Foley is a graduate of Columbia University School of Law and Yale College.