NCSL’s The Canvass

Remote ballot Marking: Risks and rewards

Casting a ballot is as easy as pie, right? On Election Day maybe you go to your neighborhood polling place before work and cast your ballot there. Or maybe you receive your ballot in the mail and sit down at the kitchen table to fill in bubbles with a pen or pencil. Now imagine being unable to do either of those things because you have a disability that affects your ability to drive to your polling place, manage the instructions, or see the absentee ballot to mark it independently. 

Voters with disabilities can experience real problems with casting a ballot. And they aren’t a monolithic group. The range of disabilities that can affect an individual’s ability to cast a ballot independently and privately varies. As people age it becomes harder to see print on a page or to hold a pen steady to mark a paper ballot. At some point, all of us are likely to benefit from technologies that make it easier to mark a ballot.

Innovations that help voters with disabilities will inevitably help all voters, too. Having a ramp or a curb cut at a polling place benefits a voter in a wheelchair, but also benefits a mother with a stroller coming to vote. A voting machine with an audio component permits a blind voter to vote privately and independently, but also helps an elderly voter who doesn’t see quite as well as she used to.

One innovation that has seen increased focus in recent years is remote ballot marking. “Remote ballot marking” allows a voter, most likely someone with disabilities that make voting in person difficult, to receive a ballot electronically, often via a web-based system. The voter makes selections on the computer using ballot-marking software, a fancy pencil that allows for enhanced flexibility. The ballot is printed after it is marked, though, so the act of marking it on a computer or other device is just that—marking the ballot. The printed ballot is then sent back to election officials for counting. Remote ballot marking isn’t internet voting, though it does use the internet to transmit a blank ballot to a voter, and to facilitate the act of marking the ballot.

This innovation was first used to assist military and overseas voters, who often cannot receive ballots by mail in a timely manner. The 2009 federal Uniformed and Overseas Citizen Voter Act (UOCAVA) requires states to offer the option of electronically sending blank ballots to military and overseas voters at least 45 days before an election. Some states expanded this mandate and permit these voters to mark ballots remotely.

Experts agree that internet voting and returning voted ballots via the internet poses security risks (see previous Canvass articles here and here). However, remote ballot marking does not pose the same risks (though it’s not without risks—see below for more) since voters are still marking a paper ballot which is then returned to election officials.

Many voters with disabilities have personal assistive technology at home that help them with everyday tasks done on a computer. They may have a screen reader, zoom text, a mouse stick, a braille keyboard, or software to track eye movement – devices and programs that they are familiar with and can also be used for voting, if they are provided with remote ballot marking software.

The Center for Civic Design, along with the National Institute of Standards and Technology, Verified Voting and usability experts, issued a draft document on Principles and Guidelines for Remote Ballot Marking Systems in 2016. The report identified one of the benefits of remote ballot marking systems as the voter being able to use their own, familiar assistive technologies from home, rather than going to a polling place and using a specialized accessible voting machine that must provide all assistive features and hardware for any possible disability. Remote ballot marking systems don’t negate the need for these specialized machines at polling places; at least one per polling location is required by the 2002 Help America Vote Act (HAVA), but they do offer another option for voters who find it impossible to travel to a polling location, or just appreciate the added convenience.

What Are States Doing?

In Maryland, where remote ballot marking is available for voters with disabilities (and others), the state sends an “origami” do-it-yourself ballot return envelope for voters. Maryland’s system was first developed to accommodate uniformed and overseas voters but the state was required by court order to make the system available for voters with disabilities.

New Mexico’s system was piloted for the June primary election and delivered ballots via a web-based system compatible with personal assistive devices. “Upon completion, the voter will print out the ballot, insert it in a ballot envelope [which    will be mailed to the voter the same day the electronic ballot is sent] and return to the county clerk office,” according to New Mexico’s state election director, Kari Fresquez. The development of the New Mexico system was a legislative requirement. House Bill 98 in 2017 required the secretary of state to establish procedures “to enable blind or visually impaired voters to independently mark a paper ballot using nonvisual access or low vision access technology, whether voting in a polling place or by absentee ballot."

Louisiana’s House Bill 614 in 2016 also required local election officials to electronically transmit a ballot to a voter who is eligible to vote absentee, and is unable to vote an absentee ballot without assistance because of a disability.  (Louisiana requires an excuse to vote absentee—see NCSL’s webpage on early and absentee voting for more information.)

Oregon provides an HTML large-print ballot that can be downloaded and printed, or presented on a tablet that can be taken to assisted living centers and marked right then and there. In all cases, the ballot is still printed out and returned to the election office. According to election director Steve Trout, the idea to put a large print ballot on a tablet came from conversations with advocacy groups that wanted a way to vote that was similar to the way people do other things in their lives, like banking and grocery shopping. Many blind and low visions individuals use tablets with screen readers, so Oregon devised a similar way to mark a ballot.

In 2016 California enacted AB 2252 that defined a “remote accessible vote by mail system” and required the secretary of state to adopt standards and certify such systems. Many states rely on the U.S. Election Assistance Commission (EAC)’s testing and certification program for voting systems, but at this point it does not include remote ballot marking devices. So far California has certified two such systems.

This year, Ohio began certifying ballot marking devices independent of EAC certification as well (see 2016 SB 63 and Ohio Secretary of State Directive 2018-03). The secretary of state’s office is making a $1.5 million grant available to counties for the up-front costs of purchasing remote ballot marking systems, to be in place for the November 2018 election. Ohio was required by court order to provide remote ballot marking options for blind voters (see the case information here).

What Are Some Issues for Legislators to Consider Relating to Remote Ballot Marking?

  • Security. Today, the first question for many legislators may be how to secure such a system. Remote ballot marking systems rely on a user’s home computer or tablet, as well as associated assistive technology, which do not have the same security vetting procedures as polling place machines. If the voter’s system relies on the internet this could also introduce risks. When considering such a system, legislators can ask experts and election officials about risks, mitigation strategies and security plans.
  • Secrecy of the ballot. Polling place machines that permitted voters with disabilities to vote privately and independently were a welcome innovation, replacing the need for people with disabilities to rely on a family member for assistance with marking a ballot. The ability to keep your selections secret is important to all voters, and any system that permits remote marking should provide secrecy. How can a voter’s selections be kept private throughout the entire process of receiving, marking and returning the ballot? This could be a procedural question for election officials, or could also involve a waiver of the secrecy of the ballot if there is no way to ensure that a voter’s information can be kept private throughout the process. If a ballot marked by a remote ballot marking device looks different than ballots marked by other means, this could prevent voter anonymity. If only a few ballots are cast that look different than most, it could be possible to determine how an individual voter voted.
  • Who may use the system? Some states have limited use of a remote ballot marking system to just blind or low vision voters. Others have expanded it to anyone who has trouble completing a traditional paper absentee ballot.
  • Communication and education. It can take a while for new technologies to catch on; voters don’t always know what’s available. Is there a plan for educating and communicating to voters with disabilities that a remote ballot marking device is an option, as well has how to use the system? Is there funding set aside for this?

Last Thoughts

Some states are looking at the use of remote ballot marking systems for other segments of the population as well, beyond military voters and voters with disabilities. Emergency first responders, for example, is another group states see as needing some special accommodations. Fire fighters that are in another state helping to put out a wildfire may be able to receive blank ballots electronically and even mark them remotely if there are no other options.

Remote ballot marking devices are likely not something that will ever be used by most voters, but may be a good option for certain segments of the population who are have difficulties casting a ballot in other ways. Michelle Bishop of the National Disability Rights Network put it this way: “When we can leverage technology to open up the process to more people and offer a range of options, we’re going to be pulling in more voters.”

Same Day Registration: What's New?

Voter registration is often treated as a chore. And, like many chores, you can always get to it tomorrow. Except when you can’t. Many states have voter registration deadlines, and once the deadline is passed individuals are no longer able to register and vote in the upcoming election.

However, 17 states, plus the District of Columbia, offer same day registration, which allows for a qualified individual to register to vote and cast a ballot that same day, either during an early voting period and/or on Election Day itself. States that allow same day registration only on Election day, often refer to it as Election Day Registration. Of the 17 states and the District of Columbia, only two, Maryland and North Carolina, allow same day registration only during early voting, and not on Election Day itself.

Five states have had same day registration since 1994 or before. The National Voter Registration Act (NVRA) of 1993 is a federal law requiring states to offer voter registration at state agencies, most notably, departments of motor vehicles (hence the “motor voter law” nickname) Still, the NVRA only applied and still applies to 44 states and the District of Columbia. Six states were exempted from NVRA coverage because they either had no voter registration requirement (North Dakota) or had Election Day registration for federal elections since Aug. 1, 1994 (Idaho, Minnesota, New Hampshire, Wisconsin and Wyoming).

Legislation

Maine and Minnesota were early adopters of Election Day registration, 1973 and 1974 respectively. There were a few more adopters during the ‘90s, followed by a steady trickle of states from 2010 to 2015. Utah and Washington State both passed legislation in 2018 for Election Day registration.There has been an upward trend in legislation over the past 18 years. There were 28 bills in 2001 and in 2013, same day registration reached its peak of 68 bills. Despite the ups and downs along the way, same day and Election Day legislation has remained a steady topic in legislatures and interest doesn’t seem to be waning.

Why SDR or EDR?

The question then, is why is same day registration an evergreen topic. Its proponents claim one benefit is increased voter turnout. According to 2016 voter turnout rankings compiled by NonprofitVote and the U.S. Elections Project, the top six states (measured as a percentage of voting eligible population)  are states with either same day or Election Day registration. A 2009 report concludes, “If the goal is higher turnout, our findings show that it should be supplemented with (same day) or, even better, (Election Day registration).” Another espoused advantage is inclusiveness. Proponents argue that same day and Election Day registration benefit under-registered demographics or mobile populations, who may be last minute registrants.  And,  same day registration may serve to remedy any errors found in a voter’s registration information on Election Day and reduce the use of provisional ballots. 

Opponents claim that by allowing an individual to register and then subsequently vote, there is not enough time to properly vet the voter for their eligibility. Likewise, including the registration process during voting puts another burden on already taxed poll workers and election officials.  Others worry that this process could lead to longer lines at polling locations. Same day registration  is often used in conjunction with e-poll books, which are not without technical problems themselves; they can also come with a hefty price tag.

More recently, the attempted access of at least 18 state voter registration systems by malicious actors in 2016 has sparked new cybersecurity concerns. There are now some who view same day registration as an ultimate fail-safe. If a county or state election system, particularly their voter registration system, goes down or is compromised, same day registration could allow everyone to register/reregister and then vote. Although this would certainly be an Election Day disaster, it is perceived as being better than the alternative, turning voters away from the polls.

From the Chair

Representative Randy Davis (R) represents the 96th House District in Alabama. The 96th district includes parts of Baldwin and Mobile county and part of the city of Mobile. Baldwin County is home to the city of Spanish Fort. The history of Spanish Fort dates to 1712, when it was originally a French trading post. After the French and Indian War, the territory was ceded to the British and was subsequently taken by the Spanish during the American Revolution.  The area and fort built by the Spanish became part of the United States following the War of 1812.

Q: What have you learned since becoming chair of the House Constitution, Campaigns and Elections Committee?

We have 67 counties so running an election that is the same in every county is difficult in Alabama, especially in respect to the amount of technology that is available. Some of the counties are extremely rural and they don’t all have access to the same levels of technology.

Recently school safety has been an issue. A lot of our buildings where elections are held are schools and sometimes the board of education is reluctant to continue allowing so many people on school campuses.

Q: What values do you hold as you think about elections policy? What’s important to you and your state?

Ease in which one can vote is important. We want to make voting as available as possible and we want to make it something that can be quickly done. We have implemented electronic poll books—a laptop or iPad—to sign-in on. We’re trying to move elections along a lot faster.

Q: Has the issue of aging vote equipment come up in Alabama? Are there plans to purchase new equipment in the near future?

I represent two counties. One county has electronic voting machines and the other has a scanner and paper ballots. The scanners are less expensive to operate and once you have your community trained on how to fill out the bubbles, it’s pretty easy.

I was on the elections committee when HAVA first occurred. Alabama qualified for about $53 million in federal aid. Since that time there hasn’t been much in new money, so it’s good to hear that there’s potential for new money now. A lot of our counties have been getting money for new equipment and to make sure we get high quality equipment.

One of the things we’ve done in the last two years is to create a check-in process using an iPad. We have a voter ID requirement for a driver’s license or non-driver ID that allows us to scan in voters using the barcode on the back. If a voter doesn’t have appropriate credentials they can still vote a provisional ballot.

Q: What does the future of elections policy look like in Alabama? What issues are you considering?

One of the things I’d like to see streamlined is the ease for absentee balloting. We’ve offered legislation on this during the last two sessions but it hasn’t gone anywhere. A lot of folks are fearful of early voting for partisan considerations. I’ll finish out my 16 years in the legislature and this no-excuse absentee voting is important to me. If you can’t vote on the day of an election you should be able to vote early without providing an excuse. I think that’s something that’s going to be looked at more in the future.

Another thing is our runoff system in Alabama. It used to be three weeks out, but because of UOCAVA it was moved even farther out. We have a lot of national guardsman and a lot of military voters that went abroad so we tried to do everything we could to help active military. That’s very important to us in Alabama.

Q: Anything else you think your peers in other states might find interesting? What is your advice to other legislators?

I’m also chairman of reapportionment. The next cycle after the 2020 census and apportionment after that is going to be critical. You have to be careful in trying to map out districts to not split precincts and minimize how many there are. Going forward that is a problem as populations shift. The average voter doesn’t understand reapportionment. Suddenly, they look up and the offices they were able to vote for in the past are no longer in their district because lines have changed. I don’t know if I’ve ever seen as many conversations and articles about reapportionment as I’ve seen lately. It will be a big issue during elections in the coming years.

In Alabama we reapportioned in 2012 and there was a lawsuit that went through this year, so we reapportioned again. So, since 2012 we’ve had a lot of conversation and a lot of movement of lines. There are changes happening in Alabama right now as industries are shifting, and technology is becoming more important. A lot of housing is getting torn down and people are moving to other neighborhoods—it changes the demographics of the community. A lot of rural communities are losing population. People are going to the city where there are jobs. It wouldn’t be as bad if you reapportioned every two years, but in 10 years a lot has changed.

The Voting Rights Act was meant to create more opportunities for African Americans to serve in elected positions. Now you can’t use race to draw a district, and you can’t use partisan politics to draw a district, yet it’s a legislative process. There’s a lot of talk about creating a commission to do apportionment. How do you pick commissioners without a political position and don’t consider race? It’s hard to do that.

The Elections Administrator's Perspective

Cliff Rodgers is the administrator of elections for Knox County, Tenn. Knox County is home to Knoxville, the first capital of Tennessee and home to the Volunteers of the University of Tennessee. The school’s nickname is derived from the state’s nickname, The Volunteer State, a title earned during the War of 1812. Thousands of volunteers from Tennessee participated in that war and later in the Mexican-American War.

Q: How did you get into the business of elections?

I am an attorney by trade, having graduated from the University of Tennessee Law School. After practicing law with a firm for four years, I decided to go in another direction. I was hired as a law clerk for the Honorable James H. Jarvis, II, United States District Judge for the Eastern District of Tennessee. That two-year stint turned into a 23-year career. So, after retiring from the federal government, I went back to practicing law. During that time, I was approached by a couple of the Republican election commissioners about applying for the anticipated vacancy for the administrator of elections position in Knox County. To be frank, the practice of law was not exactly my cup of tea so I eventually applied in 2011 and was hired. I suspected that I would enjoy the challenges of administering elections and that my law degree and legal experience would be of benefit in doing so (which they have).

Q: What are some unique issues your office faces? And how are you tackling these challenges?

Being in one of the larger counties in Tennessee, one formidable challenge is simply responding in a timely manner to all the emails and telephone calls. We try to answer every email and phone call as quickly and accurately as we can, hopefully that same day, even if it’s on a weekend. Also, we try to honor all speaking and media requests as best we can. The other major problem here in Knox County is to locate enough early voting locations in the private sector (mostly for free) in those areas of town which do not have an adequate public building for voting.

Q: Are you and your office doing anything different this year to prepare for the 2018 midterm elections?

In light of the cyber-attack/hack on the Knox County website after the polls were closed during our recent May 1st election, my staff and I find ourselves spending more time learning about cybersecurity and working more closely with our outstanding IT folks here in Knox County. We find ourselves spending more time educating and informing the public that an attack/hack on the Knox County website was not an attack, much less a hack, on our voting equipment. The media and the public—and even some legislators—do not necessarily understand that an attack on the Knox County’s website is not an attack on the voting system itself.

Q: Do you regularly work with state legislators?

The Tennessee Association of County Election Officials (TACEO) hosts an annual breakfast in Nashville which provides an excellent opportunity to meet with and discuss election issues with our legislators. There is no substitute for this type of “face time.” Additionally, topics often arise in a group setting which might not come to light in a one-on-one meeting between a legislator and a county election official such as a commissioner or an AOE like myself.

Q: What do you wish legislators would do to learn about your work?

As a general rule, my experience is that Knox County’s legislators do not hesitate to call or text me if they have any issue whatsoever about upcoming legislation—they are very interested in understanding the perspective of election officials before they vote on any legislation. Some of them will even drop by the office to visit and see how everything is going. We always welcome this since it is an excellent way for them to more fully understand and appreciate the work we undertake on a daily basis.

Q: In regard to your office and staff, what are you most proud of when running elections?

Two items must be mentioned here. First, we are extremely proud of the number of early voting locations and generous hours of operation for each election cycle—not to mention the amount of time we spend promoting early voting with the media, the press, and the public. We wish everybody would early vote! Second, we try to give the best possible service to each and every individual with whom we come in contact—whether it be in person, by phone, or by email. Our mission is the same as the Office of the Tennessee Secretary of State: “To exceed the expectations of our customers, the taxpayers, by operating at the highest levels of accuracy, cost-effectiveness, and accountability in a customer-centered environment.”

ASk NCSL

How are residents of the U.S. territories represented in American government?

The five largest U.S. territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands) are home to nearly four million people. Residents of the U.S. territories can vote in presidential primaries. However, the Electoral College system does not provide a way for these same residents to vote for president in the general election. Residents of the U.S. territories and the District of Columbia can vote for local officials and one non-voting representative for the U.S. House of Representatives. These six can speak and vote on committees as well as speak and introduce bills on the House floor; however, they cannot vote on the House floor.

To be able to vote in federal elections, some residents of the U.S. territories maintain a domicile in a state. This allows those residents to vote by absentee ballot for legislators and the president through the state’s general elections. Still, if residents of the U.S. territories no longer maintain a domicile in the states, they are subject to the same voting rules and restrictions as permanent residents of the territories.

Worth noting

  • On Wednesday, June 20, the U.S. Senate Rules Committee held a hearing on “Election Security Preparations: A State and Local Perspective.” The secretaries of states from Vermont, Missouri, Minnesota, and Indiana all testified. They were joined by Matt Masterson, Department of Homeland Security, Shane Schoeller, Greene County, Mo. clerk, and Noah Praetz, Cook County, Ill., director of elections. During testimony, Missouri Secretary of State Jay Ashcroft stated, “I have learned that winning an election does not make you an elections expert any more than watching a Fourth of July celebration makes you a rocket scientist.”
  • During Maine’s June 12 primary, the citizens of the Pine Tree State reaffirmed their desire to use ranked choice voting. In an odd twist, voters did so while using ranked choice voting. Voter reviews of the new system have been a mixed bag, with some voters finding the system of ranking candidates confusing, while others enjoyed the experience.
  • In Virginia’s Montgomery County’s F-3 precinct June 5, Election Day, was an uneventful day. It is one of two precincts located on the campus of Virginia Tech. Of the 1,327 registered voters, zero votes were cast in person at F-3. The other on-campus precinct had a total of 11 votes cast in-person. Virginia law required the physical polling locations, with the cost of operating both precincts being $1,250.
  • Los Angeles County has selected IBM Security Services to conduct a review and evaluation of their voter roster printing systems and procedures. This is in response to a printing error that occurred during California’s June 5 primary. On Election Day, 118,509 voter records were omitted from precinct pollbooks which resulted in roughly 12,000 voters having to vote via provisional ballots. The report is expected to take four weeks.
  • Synack, a firm known for bug bounties, is offering its free crowdsourced penetration testing to state and local governments until November.  The “Election Security Initiative” can test voter registration databases and official websites for vulnerabilities. Two states have engaged Synack’s services so far.
  • Spread throughout the month of July, the Center for Technology and Civic Life and the Center for Democracy and technology are partnering to offer online cybersecurity training. The three courses, Cybersecurity 101, 201, and 301 will cover technical knowledge and practical next steps for election officials.

From NCSL's Elections team

A graphic that reads "From NCSL Elections Team"

NCSL is proud to welcome three new team members! Christi Zamarripa (christi.zamarripa@ncsl.org) has joined us full time and will be focusing on campaign finance and redistricting. Matt Catron is a student from William & Mary Law School and will be with us for the summer. He will be working on election administration and campaign finance. Eliza Steffen, a undergraduate student from Stanford, will spend her summer with us as well. Her focus will be on preparing NCSL for our fall coverage of legislative races.   

And as always, let us know what’s on your mind, elections-related or otherwise.

Dylan Lynch and Wendy Underhill