"A week past the midterms—as citizens in Georgia and Florida fight to have every vote tallied—is a good time to remember that there is no explicit right of universal suffrage in the U.S. Constitution. From the start, the franchise was defined by who could not, rather than who could, vote. On Election Day, people who were unable to meet intentionally restrictive I.D. requirements, which disproportionately affect people of color, were given provisional ballots. This was just the latest chapter in a long history of voter suppression. And, when these provisional ballots were contested immediately after the election, as Republican lawmakers, led by President Donald Trump, began to call fraud on efforts to insure the most fundamental premise of a free and fair election—that every vote counts and counts equally—that chapter grew a lot longer. Although it is not clear what impact these false accusations of voter fraud may have in future elections, what they expose, right now, is a blatant attack on democracy itself.
Prior to the election, Brian Kemp, the secretary of state of Georgia, who was in charge of overseeing his own election while running for governor, repudiated ongoing efforts to restore the one and a half million voters his office eliminated from the rolls between 2012 and 2016, many because of small discrepancies in their addresses, names, or voter histories. Kemp resigned as secretary of state on Thursday, after declaring himself the winner of Georgia’s gubernatorial race, and Governor Nathan Deal appointed a crony, Robyn Crittenden, to take Kemp’s place. On Sunday, Stacey Abrams, Kemp’s challenger, filed a class-action suit to delay certification of the election until every ballot is counted. Late Monday night, in response to a different suit, this one filed on the eve of the election by the Washington watchdog organization Common Cause, the district-court judge Amy Totenberg enjoined the Georgia secretary of state from certifying the election until this Friday. Among other things, Totenberg’s order required Crittenden to provide rolling updates on rejected provisional ballots and to set up a phone line for voters to check their ballots’ status. Meanwhile, the Kemp campaign issued a statement calling “Stacey Abram’s antics . . . a disgrace to democracy.” President Trump weighed in, too, saying on Twitter that Kemp “ran a great race in Georgia—he won! It is time to move on.”
Trump has also inserted himself in the Florida elections, where the races for governor and Senate are so close that they have triggered a recount. “The Florida election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged,” Trump tweeted. To be clear, there is no evidence that ballots have been forged, and, if any are missing, it may be because, like the hundreds discovered in a Miami-Dade postal facility over the weekend, they were never delivered. Scott, the governor of Florida, who is a fraction of a per cent ahead of Bill Nelson in the race for Senate, has used his current office to call on the Florida Department of Law Enforcement to investigate “rampant fraud” in South Florida and to urge state sheriffs to impound voting machines. In a letter to Scott requesting that he remove himself from the recount process, leaders at the local chapters of the League of Women Voters and Common Cause wrote that the governor has “intentionally politicized governance of the elections,” and pointed out that the Florida Department of Law Enforcement has not found any indication of election fraud. On Monday, the election integrity organization, Protect Democracy, filed suit in federal court to have Scott removed from exercising any authority over the election or the recount. Meanwhile, Scott has fired off five lawsuits of his own, including one against the Broward County election supervisor for counting absentee ballots too slowly. “No ragtime group of liberal activists or lawyers from D.C. will be allowed to steal this election from the voters in this great state,” he said at a press conference announcing the suit. (It was dismissed on Monday.)
The rancor and wrangling in Georgia and Florida are the exceptions, but the rule turns out to be that voters across the country encountered impediments to voting on Tuesday, including prolonged wait times, intimidation, and broken voting machines. A woman named Michelle from Porter County, Indiana, posted a long thread on Twitter about her experience as a first-time poll worker that hit many of the discordant notes we’d been hearing from all over the country on Election Day: polls that couldn’t open on time because poll workers hadn’t shown up; polling places that didn’t open at all; missing ballots; ballots that weren’t being counted. The Election Protection Coalition, which runs the largest nonpartisan voter hotline in the country, logged more than thirty thousand calls from voters across the country experiencing problems.
With few exceptions, American elections are overseen by the country’s 3,141 counties and their equivalents, which in turn oversee more than 174,000 precincts. The precincts themselves are watched over by volunteer poll workers, who are tasked with turning school gyms and church basements into one-day civic hubs equipped with technology few of them understand. (Most are retirees; twenty-four per cent of them are over seventy-one.) The amateur quality to the whole endeavor is by design: it’s a way to insure that, at its core, American democracy is local. This was beneficial early Tuesday morning when people were sent away from a Philadelphia church because voting machines were malfunctioning. Once the machines were fixed, poll workers phoned the people who had left to tell them to come back. “They were all neighbors,” Micah Sims, the executive director of Common Cause Pennsylvania, told me. “They knew who hadn’t been able to vote.”
But untrained (or poorly trained) poll workers were also responsible for sending voters to the wrong precincts, for telling people they had already voted when they hadn’t, for refusing language assistance to non-native speakers, and for aggressively challenging voters’ credentials. In Florida, when a Puerto Rican woman presented her U.S. passport as I.D., she was told, wrongly, that she couldn’t vote because she wasn’t from this country. In Texas, an election worker was heard making racist remarks after challenging the veracity of a voter’s address. In her Twitter account, Michelle, from Indiana, reported that her requests for poll-worker training were ignored. Even if that weren’t so, it’s unlikely that she, or many others supervising elections, would have had the expertise to fix the broken voting machines and jammed scanners that bedeviled numerous precincts—eighteen polling places in Philadelphia alone. Malfunctioning voting machines, most of which are well past their use-by date, were predictable. Many will still be in service in 2020, either because there is no money for replacements, or because, as the election security expert Harri Hursti told me last August, counties are locked into long-term vender contracts.
Four days before the midterms, the secretary of Homeland Security, Kirstjen Nielsen, told the Council on Foreign Relations, “This is going to be the most secure election we’ve ever had.” On election day, D.H.S. set up a “virtual situation room” in Arlington, Virginia, with a hotline that election officials could call to report problems. Representatives from the major voting-machine manufacturers gathered in an unclassified area along with staffers from Facebook, Microsoft, the National Association of Secretaries of State, and the National Association of Election Officials. (High-level threats were handled in a classified briefing room.) For nearly two decades, Hursti and his colleagues have been ringing the alarm about the insecurity of computerized voting systems, like the ones used in Georgia. Voting machines, centralized tabulators, wireless systems for sending data, electronic poll books, and voter-registration databases are all vulnerable to various kinds of hacking. The 2016 election was proof of concept. This year, Christopher Deluzio, a lawyer with the Democracy Program at N.Y.U.’s Brennan Center for Justice, was an observer in the unclassified section of D.H.S.’s situation room. “It was useful to have the venders there when calls came in about problems with electronic poll books, and especially some of the older machines and software,” he said. But, he cautioned, “it is probably premature to assess how secure the election really was.”
One new security feature touted by D.H.S. was the addition of sensors designed to detect malicious activity on the election networks of forty states and sixty municipalities. (In 2016, twenty-nine states had them.) Although network sensors might have helped secure the election, they might not have helped very much. A Government Accountability Office test found that the sensors failed to detect ninety-four per cent of known malware. Another study showed them failing ninety-nine per cent of the time. Just as crucially, sensors cannot detect insider hacks, especially when those insiders have administrative access to electronic poll books, voter-registration databases, and ballot programming software.
This was acknowledged in Judge Totenberg’s Monday evening order, which noted that “according to Plantiff’s Complaint, information in the State’s voter registration server, used at the polls to determine whether voters are eligible to vote, is vulnerable to multiple security breaches and exploitable by manipulation of voter data. . . . Plantiff further alleges that the Secretary’s knowing maintenance of an unsecure, unreliable voter registration database increased the risk that eligible voters have been and will be unlawfully removed from the State’s voter registration database or will have their voter registration information unlawfully manipulated or mismanaged that prevents them from casing a regular ballot.” As Susan Greenhalgh, the policy director of the National Election Defense Coalition told me in an e-mail recently, “While we gird against the possibility of foreign hackers attacking our election infrastructure, we also can’t ignore the possibility of corrupt insiders tampering with the election systems.”
There is a school of thought that American democracy is harmed by talk of election hacking and system vulnerabilities because these will discourage people from voting. (Apparently, this was one reason that President Obama did not immediately inform the American public about Russian attempts to infiltrate the election system). But this turns out not to be true. A Harris poll from September, which was commissioned by the security firm HackerOne, found that people were actually more likely to vote in the midterms because of their fear of hacking. Last week’s record turnout at least partly confirmed this.
Still, long lines, broken voting machines, and discriminatory I.D. laws are known deterrents that will continue to dog American elections until they are systematically addressed. States actively committed to increasing voter participation, such as Colorado, Washington, Oregon, and Vermont, have passed a series of simple voting reforms, including same-day registration, automatic voter registration when getting a driver’s license, early voting, and enabling voting by mail by lifting restrictions on who can obtain an absentee ballot. Last Tuesday, a majority of citizens in Florida chose to restore voting rights to felons, and, in Michigan, a package of reforms popularly known as “promote the vote” garnered a sixty-six per cent victory, both cases demonstrating the national appetite for an electoral system that is as it is supposed to be: free and fair.
Even as the recounts continue in Florida and Georgia, the newly invigorated Democratic members of the House of Representatives have promised that their first act in the new Congress will be legislation to make voting easier and more inclusive. This is aspirational. It has no chance of passage in the Senate, where Republican members know that maintaining a majority will mean disenfranchising a sizable portion of the body politic. And that is to say nothing of a President who is unacquainted with the practice of democracy."
The Vote Counts in Florida and Georgia Bring a Touch of Fairness to a Dysfunctional Election Day | The New Yorker
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