US voters living outside the country filed a class-action lawsuit this week against election officials in seven states to force them to let voters return completed ballots electronically.
The voters cite current mail-processing delays with the US Postal Service, spurred by budget cuts and the pandemic, as the reason for their lawsuit, as well as curtailed mail services in the countries where they live. The voters, residing across Europe, as well as in Thailand, New Zealand, and Singapore, say election officials are abrogating their duties and denying eligible citizens their constitutional right to vote. About 3 million Americans of voting age were living abroad as of 2016, according to the Federal Voting Assistance Program.
Wednesday’s complaint, lodged against election officials in Georgia, Kentucky, New York, Pennsylvania, Ohio, Texas and Wisconsin – among them, critical swing states – charges the officials with leaving overseas voters with “literally no… reliable way of voting” and calls on them to join 30 other states that currently allow overseas voters to return ballots electronically.
The move, however, comes just months after the Department of Homeland Security issued guidelines to states warning them against allowing voters to return completed ballots electronically via fax, email or direct upload, calling it a “high risk” practice that could let malicious actors alter votes and vote totals “at scale” and compromise elections.
The guidelines, prepared by the DHS’s Cybersecurity and Infrastructure Security Agency (Cisa), were developed in partnership with the National Institute of Standards and Technology, the FBI and other federal agencies, and followed similar warnings over the last two decades from the Department of Defense and the National Academies of Science, who concluded that there was no way to return ballots securely over the internet.
“A last-minute change like this for something that is highly controversial to begin with is not a good idea,” says Larry Norden, director of the Election Reform Program at the Brennan Center for Justice, which has worked to improve election administration for more than a decade. “It’s a general principle of election security that you don’t want to be making huge changes in the technology for how people vote right before an election and that’s certainly the case for submitting ballots over the internet.”
Ballots sent electronically also can’t be audited since there is no paper backup of the digital documents that election officials can use to verify that the votes weren’t changed before or after the digital ballots were sent.
“This lawsuit comes at a time when all election officials are completely overwhelmed by the logistics necessary for the general election,” said Doug Kellner, co-chair of the New York State Board of Elections and a defendant in the lawsuit, in an email to the Guardian. “I will continue to oppose all methods of voting that do not provide for a voter verifiable paper audit trail as required by New York law.”
In the states where electronic return is allowed, the Federal Voting Assistance Program, operated by the Department of Defense, offers a service for voters outside the US to email completed ballots to a FVAP email address. FVAP converts those ballots into an electronic fax that is forwarded to the appropriate state.
Voters outside the US also have the option of returning their ballot via a paid courier service, diplomatic pouch through their local US embassy or – for military voters – via the military’s mail service. But courier services can be expensive and not all voters live close to a US embassy. A Thailand-based plaintiff in the lawsuit asserted that she returned her ballot via diplomatic pouch two weeks ago but has not received any confirmation. Another Germany-based voter who has used a ballot tracking service many states offer, asserted that he mailed it on 16 September and although it arrived in the US two days later, it sat in a New York mail sorting facility for eight days before moving to a Georgia facility, where it was still waiting to be sorted and sent to the Georgia Board of Elections on 30 September.
Data on how many voters outside the US return ballots electronically is incomplete because not all states track or report this information. In 2016, states sent more than 930,000 absentee ballots to voters outside the country, and about 633,000 completed ballots were returned. There’s no comprehensive data indicating how many were returned electronically. Government accountability group Common Cause calculated that at least 100,000 ballots were returned via fax or the internet in 2016 in states that provided data.
States are required to send absentee ballots to registered voters living outside the US, at least 45 days before federal elections. If voters don’t receive their ballots on time, they can download a blank federal write-in ballot from a Department of Defense website and fill in the names of the candidates they’re voting for. States differ, however, in how those completed ballots can be returned.