Voting: Will We Ever See an App for That? Penn State Law Review Online Companion Penn State Law Review

Voting: Will We Ever See an App for That?

“The election is rigged!” For the past few months, Donald J. Trump, the Republican nominee for President of the United States, has sounded alarms that the general election could be hijacked, manipulated, and outright stolen from him and his erstwhile supporters. Leaving aside the legitimacy of his claims for the moment, these comments have raised concerns among many legal scholars and political operatives that Mr. Trump has undermined the integrity of our democracy just by insinuating that the election results cannot be trusted because fraud is rampant.

Mr. Trump’s persistent drum-beat has exposed the fundamental truth of the American Republic: democracy is fragile. The stakes are high in elections, especially in presidential politics. Elections don’t need to be stolen for chaos to ensue. In fact, it may be more damaging to our democracy to think that we elected the wrong person to local, state, or federal office rather than actually electing the wrong person due to internet manipulation or outright fraudulent results. Such fragility is the principal reason why the American electoral system has not been revolutionized by technology. Today, many Americans date each other, pay their bills, file their taxes, and conduct their Christmas shopping predominately online, but yet, no voting jurisdiction allows citizens to cast their vote online. Voting regimes vary from state to state, but for the most part, registered voters still travel to a local polling station to vote by an optical-scan ballot or via an electronic voting machine.

Proponents of internet-based voting systems argue that it will increase voter participation[1] because any citizen can access the voting booth from their smartphone, tablet, or home computer. Citizens who work multiple jobs or who can’t afford to take time-off of work can vote on an authorized break without suffering economic harm. A single-parent won’t have to arrange for a babysitter before heading to the polls.

Opposition to an internet-based voting regime is robust and fierce. Critics contend that internet-based voting systems are unreliable, unsecured, and susceptible to hacking by Americans or foreign nationals intent on wreaking havoc with the American political system. To many security experts, online voting is inherently insecure and current technology cannot keep pace with the wide array of hackers, internet trolls, and other malefactors who would want to undermine a local, state, or federal election for a political aim or merely for sport. In their opinion, online commercial transactions, such as banking, are not synonymous with online voting because voting involves unique privacy considerations, the vested interests of the parties differ significantly, and the ramifications of a fraudulent banking transaction, for instance, can be easily remedied whereas a fraudulent vote could alter the outcome and never be discovered.[2] These concerns have only heightened during the 2016 election cycle with revelations that hackers have infiltrated the Democratic National Committee as well as the emails of Hillary Clinton’s campaign chairman, John Podesta.

But if the federal government allows citizens to file their taxes or apply for federal student loans online, why can’t citizens exercise their right to vote online? For one thing, online elections will be diffused rather than centralized and security experts believe that this makes them vulnerable to hackers. Proponents of an internet-based system argue that the diffusion of the political process is a safeguard and not a risk-factor because hackers would have to launch a coordinated attack across voting jurisdictions in 50 states to have any appreciable outcome on the result.

While the security risks are real and the ramifications severe, criticisms of an online voting system are often flawed because they usually gloss over the inaccuracies or inequities in our current voting system. The predominate secret ballot system is not without risks either. An online voting system presents unique but not insurmountable security challenges. A “secure” election is achieved by a dependable voting mechanism coupled with vigorous criminal prosecution of those who attempt to influence the outcome of an election illegally. However, when it comes to an online voting system, many people would apply an impossible double-standard that online security be ironclad and incorruptible before it is ever implemented. We have never subjected any other previous voting regime to an “infallibility” standard.

But why take the risk? Increasing voter participation is pivotal to the health of our democracy but also the functionality of the government itself. When voters resign from the political process, the electoral playing field becomes dominated by avid political partisans who value and reward party purity above compromise. When politicians run for re-election, they run to the flanks of their own party because that’s where campaign donations and votes can be found. For decades, politicians and campaign consultants have spent hundreds of millions of dollars in “getting out the vote” and “getting voters to the polls.” Our democracy largely rests not on the popular will of the electorate but instead, the effectiveness of a particular campaign’s “ground game” as they fight not to persuade the entire eligible electorate, but rather, drive those slices of the electorate which already agree with their policies to the polls.

It is no surprise that as voter apathy increases, the electorate has shrunk, and the public’s perceptions of Washington gridlock have never been higher while Congressional approval ratings have never been lower. States have experimented with early voting and relaxed absentee ballot programs to increase voter participation. These efforts have had mixed results. Even states that have increased voter participation with these types of voting reforms, often find themselves embroiled in political combat as both Republicans and Democrats expand or roll-back voting procedures to benefit their own electoral self-interests.

A trusted online voting system must be “end-to-end verifiable” which would vest the individual voter with the power, even after their vote has been cast, to confirm that their vote was accurately recorded and included in the final results. Also, any member of the public should be able to scour the online voting records and confirm that the online voting data mirrors the final tallies. Any discrepancies would trigger an audit and potentially, recount procedures already codified in each state’s law.

Online voting is not without risks, but security will improve as technology improves. No voting system is immune from attack. There will always be threats to the integrity of our elections no matter how they are conducted, but the benefits of an online voting system deserve consideration even in light of the security concerns. It is more important than ever to increase voter participation and online voting experiments have demonstrated that the people want this option.

 

 

1 According to the Bipartisan Policy Center, in the presidential election of 2012, voter turnout declined to 57.5 percent of eligible voters from 62.3 percent in 2008. Despite an increase in the overall population, the total number of voters declined from 131 million voters in 2008 to 126 million in 2012. All tolled, 93 million eligible voters did not vote in the 2012 presidential election between President Barack Obama and former Massachusetts Governor Mitt Romney. Turnout as a percentage of eligible voters declined in every state but two and turnout, measured by total number of citizens, declined in every state but 6.

2 Zach Montellaro, Why You (Still) Can’t Vote Online, National Review, January 28, 2016 (“Voting is different from banking because of the privacy issue,’ said [Christy] McCormick, [a Federal Election Assistance Commissioner], ‘The bank has to know who you are when you deal with them in banking. But when you vote, you still have to make sure that person still has the right to secrecy of the ballot. That part we haven’t figured out yet.”)

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