August 01, 2020 Feature

The Risks to Recounts in November Elections

Christina E. Bustos
The U.S. election system could—and should—be better secured against errors and improper influence.

The U.S. election system could—and should—be better secured against errors and improper influence.

image: stuartmiles99/iStock/Getty Images Plus via Getty Images

Remember the 2000 election? No matter your political affiliation, it probably still brings up strong emotions.

That was the year the presidential election came down to Florida, and when Vice President Al Gore contested the certification of the results, a contentious recount and litigation ensued. The Florida Supreme Court, in the hope of gaining an accurate count in a messy race too close to call, promulgated a new election law to govern the recount.

Soon-to-be President George Bush filed a request for review with the U.S. Supreme Court to stay the Florida Supreme Court’s decision. The U.S. Supreme Court in Bush v. Gore, in an unusually activist fashion for a conservative majority, ruled that the manner in which votes were being counted violated the equal protection clause of the Fourteenth Amendment. In a 5-4 decision, the court found that the lack of predetermined, uniform standards in Florida’s law and in practice made a Constitutional recount—one that would apply similar standards to ballots statewide—impossible under the circumstances.

The chaos and irregularities that overtook the 2000 Florida presidential recount exposed serious flaws in our election system, prompting Congress to pass the Help America Vote Act in 2002. Among other things, HAVA sought to replace punch card and mechanical lever voting systems and to assist in the administration of federal elections. The intention was to use technology and improve machines to make elections more efficient and precise so, in the event of a recount, election officials could point to clearly established numbers instead of leaving high-stakes decisions to imperfect human judgment.

The initiative worked. In recent U.S. elections, 99 percent of votes were cast or counted on computers. As many as three-quarters of voters will vote on optical or digital scan machines in 2020. However, that same technology that’s meant to streamline elections has led to vulnerabilities in the transmission of votes, the tallying of votes, and the reporting of votes, in addition to voter polling.

Now the country is more polarized than ever, and hyper-partisan disputes erupt every election cycle, including in hotly contested recounts. Post-Bush, courts around the country have adjudicated a wide range of election-related equal protection and due process issues using varying standards to reach disparate decisions.

The majority’s maxim in Bush, “having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment value one person’s vote over that of another,” is difficult to apply and implement in jurisdictions with varying election practices, regulatory bodies, and common law. More than 9,000 jurisdictions of varying size administer the country’s elections, with voters casting ballots in 185,000 precincts. And the inconsistent use of new and sometimes flawed technology further complicates review of election processes and results.

Risks to Our Elections

The U.S. election process faces two primary categories of risk.

First, there are inherent vulnerabilities within the various components—from voter registration to computing votes in the event of a recount. These inherent risks include security issues with voter machines and devices and the role private-sector companies play in elections. Outside of any intentional act that may lead to machine or process vulnerability, there will also be inadvertent errors made by under-trained and over-worked election administrators and imperfect technology.

The U.S. government provided $380 million in fiscal year 2018 to state and local election officials to support voting equipment purchases and security enhancements to election systems but didn’t specify any particular security measures to be taken. For example, the funding could have been spent to purchase voting machines or equipment with known security vulnerabilities.

Second, the U.S. election process faces an unprecedented threat of foreign interference. Online systems lacking adequate security may be hacked in an effort to change the result of an election. Disinformation campaigns propagated by foreign entities can be weaponized to influence voters and even election officials. Seven federal agencies acknowledged in a statement on the 2019 election:

[O]ur adversaries want to undermine our democratic institutions, influence public sentiment and affect government policies. Russia, China, Iran, and other foreign malicious actors all will seek to interfere in the voting process or influence voter perceptions.

As we’ve seen, the risk of foreign interference is especially pronounced when private-sector companies that provide election services have access to sensitive voter and election data.

What Can Be Done?

A healthy democracy relies upon secure and transparent elections. While the entire election process is vulnerable to security issues, recounts are perhaps the most vulnerable due to the confusion and chaos that surround the recount process. In every state, the losing candidate has the right to petition for a recount if the election is close, and as we saw in Bush, a recount in one state can determine a national election.

There has certainly been progress since 2000. Debates over what type of voting equipment provides the most accurate and secure elections have gained national attention. Election protection programs for Democrats and ballot-security strategies for Republicans have become commonplace among campaigns at all levels. And as recounts have become more frequent, campaigns of candidates from both political parties consider recount planning and training as an integral part of their overall strategy.

Still, there are proactive measures state election officials can take to improve the election and recount process. Examples of such measures include:

  • Improved ballot design and voter access to a sample ballot, along with guidance on the voting device before voting to reduce voter confusion and any resultant voting device error
  • Putting voting devices through logic and accuracy tests before delivery to the precincts to ensure they accurately read and record votes as intended
  • Providing election workers adequate training before the election on how a recount will be conducted, including technical training on any of the devices that will be used in a recount

At the federal level, advocacy groups such as the American Bar Association are pushing for Congress to enact legislation that will provide funding to the National Institute of Standards and Technology to develop federal standards for cybersecurity of election system software. It would include software from private-sector companies involved in elections and promote a certification process that could be used for election systems nationwide.

Implementing proactive measures would no doubt help make elections run more smoothly and more securely. Many states have enacted, or are in the process of enacting, improvements to voting. However, the decision to make changes to election law or procedure and to enforce those changes is largely at the discretion of the states and localities where elections will be held. As we’ve seen highlighted in recount case law, the response won’t be uniform.

In November’s election, a recount at some level is highly likely. If a recount challenge makes it to the U.S. Supreme Court, we may finally get more concrete guidance on how to conduct secure, accurate, and transparent elections and recounts in the 21st century.

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Christina E. Bustos

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Christina E. Bustos is an associate at Sandler Reiff Lamb Rosenstein & Birkenstock, P.C. in Washington, D.C. She advises clients on how to lawfully and effectively engage in political and lobbying strategies at the local, state, and federal levels, including navigating gift and ethics rules. She also represents candidates and parties in recounts and other electoral disputes, most recently as part of the Voter Protection Team during the 2018 Florida recount.