Two recent lawsuits in Ohio highlight the growing difficulties of balancing election security and equal access to voting with the pandemic-fueled effort to rapidly expand mail-in voting this November. Both lawsuits were filed on July 31, one by the Ohio Democratic Party and the other by the League of Women Voters, and challenge existing security measures for mail-in ballots.
Ohio Democrats are demanding that Ohio residents be allowed to submit an application to receive a mail-in ballot via email. Earlier this year, Ohio Secretary of State Frank LaRose urged the legislature to authorize the creation of a secure online portal for residents to submit applications for mail-in ballots, after determining the secretary of state did not have the authority to do this on its own. A bill was introduced, but the legislature took no action on it.
Despite LaRose's advocacy for online mail-in ballot requests, he is balking at the particular remedy state Democrats are now seeking: “Plaintiffs seek declaratory judgment that … qualified electors have a right under [Ohio law] to make application for an absentee ballot by emailing an image of their application to their respective county board of elections, or by other viable electronic forms of transmission, such as facsimile machine, and to have their application processed in the same manner as a hard-copy application.”
The Democratic Party has spent the four years since 2016 warning about insecure election systems and hacking, but it apparently sees little risk in emailed applications. The Republican secretary of state, on the other hand, believes the Democrats’ solution could jeopardize the election. “Implementing an insecure system where e-mailed attachments could just as easily be a virus as it could be a picture of a ballot request form puts our election in danger,” said LaRose in a statement. LaRose further notes he’s already taken a major step to expedite mail-in voting in the state. “In just a few weeks, we are putting a ballot request form in the hands of every registered voter. That allows every voter to have their voice heard,” he said.
Asked about possible security risks involved in emailing attachments to Ohio’s 88 different county election boards, the Ohio Democratic Party noted the policy is already in pratice. “The secretary of state accepts emailed absentee ballots and requests every election from overseas voters, and the District of Columbia, Massachusetts, Missouri, North Carolina, North Dakota, Tennessee, West Virginia, Wisconsin and Wyoming all permit voters to request an absentee ballot via email,” Kirstin Alvanitakis, a spokesperson for the Ohio Democratic Party, said.
The secretary of state argues that just because it allows emailed applications in narrow circumstances – accommodating overseas military, for example -- that doesn’t justify the increased security risk involved in allowing every Ohio voter to email in an application for a mail-in ballot.
“If other states want to allow tens of thousands of voters emailing insecure attachments to their county boards of elections – essentially providing our nation’s enemies an unprecedented opportunity to insert a computer virus into our county boards of elections in the huge mass of emails they will receive and thus, greatly increase the chances of the presidential election being disrupted – well, that’s up to them,” Jon Keeling, spokesman for Ohio Secretary of State Office, told RealClearPolitics. “Ohio is a national leader in terms of taking on the complex cybersecurity challenges our elections system faces each and every day, and Secretary LaRose intends to keep it that way.”
The League of Women Voters’ lawsuit challenges the use of “signature matching” on mail-in ballots and mail-in ballot applications. The LVW argues the system is arbitrary and inconsistent and could disenfranchise many eligible voters. Signature matching, in which the local board of elections compares the signature on a ballot to the voter registration card on file, is a common method for verifying mail-in ballots around the country. In addition to a signature match, Ohio also requires voters to write their driver’s license number or the last four digits of their Social Security number on the identification envelope, or include a copy of a photo ID or a current utility bill, bank statement, government check, paycheck, or other government document that shows their name and address.
Judging whether signatures match is not an exact science, and subject to human error. It’s not uncommon for voters to have injuries or health issues that affect their signatures, just to name one serious problem with signature matching. Still, the secretary of state says the League of Women Voters’ lawsuit seems to be a solution in search of a problem. When the pandemic forced Ohio to conduct an all mail-in election this spring, the secretary of state's office notes that out of 1.5 million ballots, only 271 were rejected as a result of signature mismatches.
Jen Miller, a spokesperson for the League of Women Voters, said she's not confident the data on rejections due to signature mismatches is reliable – the LWV historically has had difficulties compiling accurate statewide data from Ohio’s 88 different county boards of election. Regardless, the LWV notes that if one person is wrongly disenfranchised as a result of a signature match requirement, that’s too many.
Compounding the problem is that “Ohio law also provides no meaningful guidance on what it means for an official to ‘compare’ the signatures on a ballot and registration form,” according to the LWV’s legal complaint. As a result, it appears election boards are using a variety of different standards to judge signature matches, the LWV argues. “We're asking the court to say the way this is being done right now is unconstitutional and order changes, and those changes should be universal across all 88 [of Ohio’s boards of election],” Miller said.
However, LWV’s lawsuit raises the possibility that a court could strike down the signature-matching requirement altogether. While signature matches raise a host of issues that could lead to unfair disenfranchisement, they also provide security benefits and have proven to be a difficult hurdle to clear for those engaged in voter fraud.
In Paterson, N.J., the state’s attorney general indicted four men on charges of voter fraud last month, including a member of Paterson’s city council, and signature matching was a key part of uncovering their alleged scheme. One of the candidates in Paterson’s election was alleged to have stolen completed mail-in ballots over a period of years to build up a “a database of signatures” that could be used to submit fraudulent ballots.
Still, the LWV’s lawsuit cites further irregularities to bolster its case the laws in Ohio are inadequate when it comes to making sure mail-in votes are counted accurately. LWV objects to the fact Ohio boards of election reject applications for mail-in ballots on the basis of signature matches, even though there’s no legal requirement for signature matches to verify ballot requests, as opposed to actual ballots.
LWV’s lawsuit also notes the timeline provided by Ohio law doesn’t allow voters adequate time to make sure their vote is counted should their ballot be rejected because of the signature-match requirement. “Ballots may be received up until the tenth day after Election Day, but the State stops notifying voters of signature mismatches on their ballots six days after Election Day, and voters have until only seven days after Election Day to cure a mismatched signature,” the LWV’s legal complaint states.
While he can’t change the law, LaRose seems to recognize this is a problem and issued a directive last month ordering voters be promptly notified of problems and given more time to cure their ballots. “While previously these voters would only be notified by mail, county boards are now directed to utilize any e-mail or phone contacts available, in addition to also sending a written notice, to inform voters of the shortfall and provide them information on how to quickly rectify the situation,” he said.
For now, LaRose seems to be worried that trying to address the signature-match problem so close to the election might result in unforeseen problems. “As always, I’m open to working with these groups to improve Ohio’s processes and technologies related to signature verification, but a lawsuit 67 days before early voting begins is not the solution,” LaRose said in a statement.
Similarly, the League of Women Voters wants to make it known its concern about signature matching doesn’t discount the need for election security. “We care about security and integrity, but we can't have that at the expense of access when we know we're relying so much on an imperfect science and every county is doing it differently,” Miller said.
Recent difficulties counting votes in New York and elsewhere suggest Ohio is not the only state scrambling to address the uptick in mail-in voting in the last 20 years, now accelerated by the COVID-19 crisis. Finding the right balance between laws that readily enfranchise voters and addressing the technology and security concerns that arise from a surge of mail-in ballots in a pandemic is proving difficult and contentious, and could spell trouble in November.