Following up on President Donald Trump’s executive order on improving the integrity of American elections, the Department of Justice recently issued requests to multiple states for information about their voting procedures and databases. As reported in Votebeat, the DOJ has “asked for varied sets of data and records, including voter rolls, information on potential election and voting crimes, data from past elections, and details about procedures for maintaining voter lists and checking voters’ eligibility.”
This is a welcome development. Hopefully, it marks the beginning of a concerted, nationwide effort to ascertain and remediate deficiencies and mitigate risks to election integrity, particularly those associated with mail-in voting infrastructure and processes.
The risks brought forth by scaled up, so-called “no-excuse required” vote-by-mail are intuitive and well-recognized. For example, findings from a comprehensive two-year study assessing the limitations of the nation’s voting systems, published in 2018 by the National Academies of Sciences, Engineering, and Medicine, offered the following admonition regarding mail-in voting:
“Outside of the privacy of a voting booth, other individuals may buy or sell votes or overtly pressure a voter to make particular ballot selections … The paths that mail ballots travel introduce other risks that are typically avoided with in-person voting” (page 66).
Similarly, a risk assessment issued by the Cybersecurity and Infrastructure Security Agency in July 2020 highlights multiple potential avenues of integrity or availability attack on mail ballot application processing or ballot collection infrastructure. For instance, an attack on a voter’s mailing address in the mail ballot request list could result in failure to receive a ballot or receipt being delayed. The assessment also outlines risks associated with outbound ballot processing—printing and assembling ballot packages and mailing them to voters.
Given this context, the DOJ’s incipient review of voting procedures and infrastructure is an important step forward.
In particular, the agency has authority under the National Voter Registration Act to assess a state’s compliance with federal rules governing maintenance of voter registration records and to issue guidance or clarification to facilitate compliance with the law. Accurate and up-to-date voter databases are a critical line of defense against mail-in voting fraud.
The presence of duplicative or stale records (such as the same individual appearing twice, with differing addresses, or an individual who has relocated elsewhere) can facilitate “voter identity theft.” In such a scenario, a malevolent actor would apply for a mail-in ballot by usurping an obsolete record on the voter registration list, with minimal risk of being detected, or worse, a hostile foreign entity could influence the outcome of an election by coordinating such an identity theft operation.
Watchdog groups such as the Public Interest Legal Foundation offer statistical evidence to back their claim that states have fallen short in keeping their voter registration databases clear of errors. A December 2019 report from Pennsylvania’s Auditor General spelled out the errors auditors uncovered in Pennsylvania’s voter registration system. For example, voters characterized by the same driver’s license number and other identifying information, but different names and addresses (such as might be an outcome of a marriage or divorce). The report also cited relatively high incidence of lagging database maintenance in some counties:
“In failing to properly classify active voters as inactive and subsequently removing inactive voters from the voter rolls after established time periods, counties are not complying with state law and are increasing the risk of fraudulent voting” (page 57).
Michigan arguably is the epicenter of contention over the adequacy of states’ database maintenance activities. As of October 2020, the number of registered voters in Michigan (8,061,525) exceeded the state’s voting age population (7,910,360) by about 150,000. After accounting for voter eligibility factors (voting-age, noncitizen, and incarceration), the gap is estimated to have been close to half a million individuals.
According to state officials, this gap is due to inactive voters who remain on the rolls consistent with National Voter Registration Act retention requirements, and it necessarily persists. Nonetheless, questions remain about the states’ inability to officially confirm these voters’ de facto status.
The DOJ review may serve to ensure that all states are applying best practice approaches to managing their voter registration data, mitigating risks to election integrity. The agency’s letters mailed to Michigan and Pennsylvania, for example, include detailed inquiries into each state’s procedures for cleaning their registration rolls.
Another ongoing area of concern that the DOJ review appears poised to tackle is whether adequate procedures are in place to keep voter registration closed to noncitizens. Watchdog groups contend that elections are unduly vulnerable to noncitizen voting. The DOJ review may serve to ensure that all states are applying best practice approaches in this area as well.
It is also important to consider that there may yet be substantive, unanswered questions about security of mail-in voting during the 2020 presidential election. These could be within the department’s purview to examine, and investigation of them could prove impactful. If malfeasance is found, discovering the methods employed and holding the wrongdoers accountable would undoubtedly help prevent recurrence.
An analysis I conducted using publicly available data on mail-in voting in the 2020 presidential election in Pennsylvania provides a compelling case in point. Observed oddities in these data raise potential concerns ranging from address tampering to voter identity theft. For instance, Republican mail-in ballot applicants had significantly lower ballot return rates compared to Democrats, and among those returning their ballots, Republicans were much slower in doing so. These patterns are consistent with the address tampering scenario from the Cybersecurity and Infrastructure Security Agency assessment.
In sum, the DOJ review is likely to yield material results in enhancing election integrity (or allaying concerns thereof). Note, however, that the agency’s authority over state and local election procedures is limited to monitoring and enforcing compliance with existing federal election law. This limits its ability to influence states’ mail-in voting procedures, even where risks may seem high. Achieving further progress ultimately will be in the hands of Congress, state legislatures, and state and local election officials.
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