Internet Voting Proposals
Analysis
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Table of ContentsI. Executive Summary
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I. Executive Summary
This paper evaluates the feasibility of Internet voting. This paper will discuss utilization of the Internet as a tool to promote voter turnout and the obstacles that accompany it.
This analysis addresses technical issues that arise in connection with Internet voting, including authenticating voter identity and assuring privacy of the vote. Any discussion regarding Internet voting immediately turns to the question of whether existing or soon to be existing technology will guarantee the integrity of the vote. This question is very much in doubt in light of viruses such as the Love Bug and the penetration by hackers into FBI Pentagon headquarters, and even the White House.
Also analyzed are constitutional provisions that are the foundation from which any Internet voting program must build. The so-called "Digital Divide" is at the center of the constitutional analysis of Internet voting. An Internet voting program must be capable of providing equal voting access to all citizens.
To be certain, Internet voting has created much debate from the Assembly floor to Silicon Valley boardrooms. The more discussion and debate that takes place regarding the topic, the better the outcome for all. The debate is needed to create a system that will be accepted by the public, in light of the existing skepticism concerning Internet voting.
It is encouraging that the concerns illustrated by the proponents of Internet voting are similar to those of its opponents. On a positive note, both sides of the debate consider integrity of the vote, privacy, and equal access to voting key issues that must be addressed by any Internet voting program.
California Secretary of State's Internet Task Force brought together leaders from the technology industry and experts in the elections field to develop a four-stage recommendation on how to implement Internet voting. Although neither of two proposed Internet voting initiatives qualified for the November 2000 ballot, the movement towards Internet voting continues to be swift. In addition to the Secretary of State's report, an Assembly Bill, AB 2519 (Shelley, D-San Francisco), that proposed to implement a pilot project on Internet voting in three counties passed the Legislature on September 7, 2000 but was vetoed by Governor Davis. The 2000 primary season marked the first use of the Internet in a legally binding election, Arizona's Democratic primary. In addition, Alaska performed a straw poll via the Internet. The state of Washington is also reviewing the feasibility of Internet voting.
The momentum behind Internet voting makes it clear that the appropriate question is not whether Internet voting will happen, but when and in what form.
II. The Law
A. Existing Law
I. Constitutional Voting Protections
The Constitution of the United States of America sets out certain rights that must be protected by any proposed Internet voting program. Those rights include, "[T]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." (U.S. Const. amend. XV, §1.) The Constitution further protects the right to vote by ensuring that a citizen's opportunity is not prevented, ". by reason of failure to pay any poll tax or other tax." (U.S. Const. amend. XXIV, §1.) These amendments were added to the Constitution for the sole purpose of ensuring that each citizen of the United States who meets certain qualifications, such as the minimum requirement of attaining eighteen years of age, will be permitted to participate in our democratic electoral process. A proposed change to the voting procedure, such as utilization of the Internet, must be in conformity with these constitutional provisions.
2. Federally Enacted Legislation
In recognition of the importance of the vote in our political system, Congress has passed legislation to protect each citizen's voting access. First, Congress established that, ".[N]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.." (42 U.S.C. § 1973(a).)
Second, Congress enacted legislation to ensure that the opportunity to vote would be equally open to all citizens. "A violation of subsection (a) is established if, based on the totality of the circumstances, it is shown that the political process leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." (42 U.S.C. §1973(b).)
3. The Constitution of the State of California
The State Constitution sets voter qualifications in California. "A United States citizen 18 years of age and resident in this state may vote. (Cal. Const. art. II § 2 [West 2000].) The California Constitution includes a requirement that will likely play a major role in the Internet voting debate. Article II Sec. 7 specifies that, "[V]oting shall be secret." (Cal. Const. art. II § 7 [West 2000].)
4. State Enacted Legislation
California has enacted safeguards to ensure the vote remains accessible to all residents. First, the California Elections Code Section 2000 (a) guarantees that, "[E]very person who qualifies under Section 2 of Article II of the California Constitution and who complies with this code governing the registration of electors may vote at any election held within the territory within which he or she resides and the election is held. (Cal. Elec. Code § 2000(a) [West 2000].) Second, section (b) provides that " Any person who will be at least 18 years of age at the time of the next election is eligible to register and vote at that election. (Cal. Elec. Code § 2000(b) [West 2000].)
B. Proposed Changes
1. AB 2519 - Elections: Internet voting pilot program.
In summer 2000, Assembly Bill 2519, authored by Assemblymember Kevin Shelley (D-San Francisco), was passed by the Legislature but was vetoed by Governor Davis who felt that the necessary safeguards and security measures needed to be more fully developed. (Governor's Veto Message, AB 2519 [Shelley], 1999-2000 Leg. [Cal. 2000].) This bill would have established an Internet Voting Pilot Program administered by the Secretary of State for the conduct of local elections over the Internet in not more than three counties. (AB 2519 [Shelley], 1999-2000 Leg., 2d Reg. Sess. [Cal. 2000].) The purpose of the bill is to test the viability, accuracy, security, integrity, efficacy, and the public acceptance of the use of an Internet voting system to supplement the voting system in place in participating counties. (Pilot Program: Internet Voting: Local Elections, 2000: Hearings on AB 2519 [Shelley] Before the Assembly Committee on Elec., Reapportionment and Const. Amend. 1999-2000 Leg., 2d Reg. Sess. [Cal. 2000].) The goal of AB 2519 was similar to that of all proposed Internet voting proposals, to increase participation in the electoral process. (Id.) Specifically this bill:
1) Required the Secretary of State to select not more than three counties for voluntary participation in the program.
2) Authorized the participating counties to use an Internet voting system certified by the Secretary for local elections, held before July 2003, that coincide with statewide elections.
3) Required the counties to report their experience to the Secretary and the Secretary to submit a summary report to the Legislature. (Pilot Program: Internet Voting: Local Elections, 2000: Hearings on AB 2519 Before the Assembly Committee Appropriations, 1999-2000 Leg., 2d Reg. Sess. [Cal. 2000].)
2. Secretary of State's Task Force Recommendations
Any proposed California Internet voting legislation will most likely incorporate the proposals of the Secretary of State's Task Force Report. California law establishes, ".the Secretary of State as the chief elections officer of the state.." (Cal. Elec. Code § 10 [West 2000].) In line with his duties as the chief elections officer, the Secretary of State has created a task force to research the viability and problems associated with Internet voting.
The Task Force was made up of a contingent from the technology community, including systems engineers from Compaq Computers and the Silicon Valley software industry, as well as election experts from the Secretary of State's office, county officials, and Assemblymembers. (California Internet Voting Task Force, Report on the Feasibility of Internet Voting 8 [Secretary of State 2000].)
When the Task Force initially met in early 1999, the technology committee was certain that an Internet voting program could be initiated with the necessary security, privacy, and procedural aspects in place. (Interview with Alfred Charles, Task Force Chair and Assistant Secretary for e-Government for the Secretary of State, in Sacramento, Cal. [June 9, 2000].) The voting experts expressed skepticism whether an Internet voting program could ever be developed to address these concerns. (Id.) Eleven months later, the Task Force recommended implementing a four-stage process.
The stage-by-stage approach was developed on the theory that California may get only one bite at the Internet voting apple. The public trust in Internet voting is delicate. If a program is initiated that ultimately fails for reasons of a breach in voting integrity or technical difficulties, the public may stay away from Internet voting and in some cases voting all together. (Id.) The Task Force recommended that the four-stage process be implemented in two phases. (California Internet Voting Task Force, Report on the Feasibility of Internet Voting, 15 [Secretary of State 2000].) The first phase is the supervised use of an Internet Voting Machine in a public place (stage one and two), and the second phase is remote Internet voting at a public place (stage three) and ultimately voting anywhere the internet is available (stage four). (Id.)
Phase One: Supervised use of an Internet Voting Machine
Stage One: Internet Voting at Voter's Polling Place
In Stage One, an Internet Voting Machine is used in a traditional polling place instead of paper ballots. The polling place workers verify the identity of voters similar to current election procedures and provide the voter with an electronic ballot. (Id. at 17.) The voted ballots are sent to election officials over the Internet and are tabulated by the county. (Id. at 18.) At this stage voters are required to vote at their home precincts. (Id. at 17.) Stage One does not go very far in fulfilling a primary purpose of Internet voting: increasing voting turnout via a more convenient way to cast votes. However, Stage One allows for development and testing of the basic elements of an Internet Voting System that can eventually be used to allow for Remote Internet Voting. (Id. at 17.)
Stage Two - Internet Voting at Any Polling Place
Stage Two is the same as Stage One, except voters are allowed to vote at any polling location within a county or at centrally located Internet polling locations available to all voters in the county. (Id. at 20.) By making available different ballot types in all polling places, Stage Two makes voting more convenient for those individuals who are unable to return to their home polling location. (Id.)
Phase Two: Remote Internet Voting
Stage Three: Remote Internet Voting from County Computers or Kiosks
Stage Three allows for remote Internet voting by providing a voter with a password or digital signature from the county election officials which can be used at any polling place established throughout the state by the elections office. (Id. at 23.) Stage Three will allow for Internet Voting Machines to be placed in high traffic areas such as shopping malls, well in advance of the actual election day, providing voters with an opportunity to vote without having to go to the polling place. (Interview with Alfred Charles, Task Force Chair and Assistant Secretary for e-Government for the Secretary of State, in Sacramento, Cal. [June 9, 2000].) To utilize the Stage Three option, a voter will have to request an Internet ballot authentication code from the county election office in order to access the Remote Internet Voting Machine. (Id.)
Stage Four: Remote Internet Voting from Any Internet Connection
Although a paper Internet Ballot Request Form would still be required, voters would be able to use a county-provided authentication mechanism to vote from any computer with Internet access. Election officials may provide voters with a single-use clean operating system and web browser for voting. (California Internet Voting Task Force, Report on the Feasibility of Internet Voting, 15 [Secretary of State 2000].) As discussed in the forthcoming section, "Technical Issues", Stage Four creates numerous dilemmas ranging from maintaining the integrity of the vote to privacy.
3. Initiatives
There were two separate attempts to place Internet voting initiatives on the November 2000 ballot. Although both were unsuccessful, the message is clear that the future of Internet voting is being pushed to the forefront by private citizens, as well as government agencies.
a. Initiative 870: Elections. Use of Internet for Voter Registration and Voting.
Proponent Marc Strassman authored the first of two initiatives registered with the Secretary of State's office. (Initiative 870: Elections. Use of Internet for Voter Registration and Voting. [visited June 12, 2000] http://www.ss.ca.gov/elections/election.htm.) The short lived initiative attempted to authorize the use of the Internet for electronic voter registration and for casting ballots in direct primary elections, statewide general elections, and other public elections. (Id.) The Secretary of State would be required to test and certify voting systems, to accredit means of identifying and authenticating voters, to protect voter confidentiality, and to adopt rules and regulations governing Internet voting procedures. (Id.) Mr. Strassman is undecided as to whether he will proceed with another effort to place an Internet voting initiative on the ballot. His decision will be based on what the legislature does in the following two years. (Telephone Interview with Marc Strassman, Author, Initiative 870, [Wednesday, August 22, 2000].)
b. Initiative 880: Elections. Internet Voting, Voter Registration and Initiative Petitions. Initiative Statute.
This initiative would have required the Secretary of State, by January 1, 2002, to announce regulations that would have provided for a network system that allows for the signing of initiative petitions, registering to vote, and voting in elections via the Internet. (Telephone Interview with Fred Adler, President Citiscape Multimedia Strategy, [Monday June 19, 2000].) Even though the initiative failed to qualify for the upcoming ballot, proponent Fred Adler is satisfied to wait and see what transpires between now and 2002 before deciding whether to place another Internet voting initiative on the next ballot. (Id.) Although they failed to get on the ballot, the proposed initiatives were beneficial because they forced the Legislature to recognize the tremendous interest in Internet voting, which will likely result in the Legislature enacting their own Internet voting legislation. (Id.)
Most aspects of the Internet voting initiative would be satisfied by the Secretary of State's Task Force recommendations, therefore there would be little need to pursue placing the initiative on the 2002 ballot. (Id.) One interesting and controversial aspect of proposed Initiative 880 is the inclusion of the ability to sign initiative petitions via the Internet. This was not addressed by either the Secretary of State's proposal or AB 2519. (Id.) The rationale behind allowing signatures to be gathered over the Internet is to permit a true grassroots effort in placing initiatives on the ballot. (Id.) As the cost of gathering the requisite signatures continues to grow, only corporate entities, which already have traditional lobbying programs in place, will be able to spend the millions of dollars required to successfully gather the requisite signatures. Mr. Adler, the proponent of the Internet voting initiative, understood this and financed the initiative signature drive himself. (Id.)
III. Technical Issues
There are several issues that arise each time Internet voting is discussed, including such technical issues as authentication of the voter and privacy. (Deborah M. Phillips, The Voting Integrity Project, Are We Ready for Internet Voting? 7 [1999].) The most frequently debated issue is whether the integrity of the vote may be retained. This question was raised during an Assembly floor debate on AB 2519 when Assemblymember George House reminded the Assembly that e-mails are vulnerable. (Assembly Floor Debate [May 25, 2000] [statement of Assemblymember George House].) Several computer infiltrations by hackers and viruses had harassed the nation just weeks prior to the debate. If viruses such as the Love Bug and the infiltration of the Pentagon can occur, there is no question that the average personal computer can be violated.
Verification of both the identity and eligibility of the voter, in a manner that guarantees one vote per person, is an additional obstacle to be overcome via an authentication device provided by the elections office. (California Internet Voting Task Force, Report on the Feasibility of Internet Voting, 23 [Secretary of State 2000].) The device would consist of an authentication code such as a Personal Identification Number (PIN), password, or digital signature. (Id. at 24.) Presently that type of a universal digital identification system is not readily available, nor accessible to all voters. (Id. at 13.)
One problem in developing Internet voting is protecting the computer program from being manipulated. The challenge will be to take the appropriate steps to prevent, identify, and contain fraud. (Sam Diaz, Arizona Democrats Can Vote Online in Primary, Knight-Ridder Trib. Bus. News, March 3, 2000, available at http://www.lexis.com/research/retrieve/ frames?.) The problem is not so much maintaining security once the vote enters the Internet pipeline, but it is when the vote is still within the computer. (Interview with Alfred Charles, Task Force Chair and Assistant Secretary for e-Government for the Secretary of State, in Sacramento, Cal. [June 9, 2000].) The risk is very real that a Trojan Horse type of virus could corrupt a computer and lay dormant until the electronic ballot is submitted. (Id.) Anti-virus software is only as effective as the user. The user must be disciplined enough to download the latest anti-virus updates within days of voting, and remember to scan the hard drive to detect any new virus. Of course, even this method cannot ensure that a complicated virus, created for the sole purpose of manipulating an election, will be detected and destroyed.
With current technology, Internet elections could pose less risk than traditional elections, if done right. (Sam Diaz, Arizona Democrats Can Vote Online in Primary, Knight-Ridder Trib. Bus. News, March 3, 2000, available at <http://www.lexis.com/research/retrieve/ frames?>.) Currently existing software is adequate to protect the integrity of the ballot once the ballot gets into the Internet pipeline. Transactions currently performed over the Internet include e-commerce, the transferring of funds around the world, and the purchasing and selling of stocks. For example, 100 million Americans will go online this year and spend almost $12 billion in online purchases. (All Things Considered: Commentary: Allow People to Register to Vote Online [National Public Radio broadcast, Aug. 10, 1999] [transcript on file with California Initiative Review].) The preferred means of transmitting sensitive information is through Secure Sockets Layer (SSL) technology, a system that creates a confidential communications "pipe" between two computers and encrypts the data as it is sent through the pipe. (Sam Diaz, Arizona Democrats Can Vote Online in Primary, Knight-Ridder Trib. Bus. News, March 3, 2000, available at <http://www.lexis.com/research/ retrieve/frames?>.) The SSL technology is the most widely used method by e-commerce sites for submitting credit card information to process sales and by banks to process account numbers, balance inquiries and money transfers. (Id.) Security breaches with transmissions protected by SSL are "pretty marginal problem[s]," that tend to arise more with public terminals than home systems. (Id.)
Given sufficient time, the technology industry is certain to develop a secure system to implement Internet voting. However, it remains to be seen whether a secure system can be developed to permit citizens to vote from their home personal computers. As the stakes get higher, and the temptation to manipulate an election as significant as a United States Presidential race becomes greater, the need for a secure method of Internet voting will be unavoidable. Therefore, there is no reason to fast-track a proposal that does not consider all potential security threats. The benefit of increased voter participation is worth requiring a methodical approach in implementing an Internet voting program.
IV. Constitutional Analysis
A. Federal Constitution
The primary federal constitutional issue regarding Internet voting has been termed "the Digital Divide." There is widespread concern that when people vote on computers outside a controlled environment, election outcomes would be biased in favor of the population that has access to the Internet. (Tapan Munroe, Tapan Munroe Column, Knight-Ridder Trib. Bus. News, May 4, 1999, available at <http://www.lexis.com/research/retrieve/ frames?>.) This would result in greater voter participation among educated and wealthier households. (Id.) Further, results possibly could include greater political participation in metro versus rural regions, and greater participation in technologically proficient regions such as the Silicon Valley or Austin, Texas. (Id.)
It is argued that the Digital Divide issue would violate the 15th Amendment's guarantee that "the right to vote shall not be denied or abridged by the United States or by any state on account of race or color." (U.S. Const. amend. XV, §1.) This argument is based on the proportion of minority groups who do not have Internet access, compared to those Caucasian families with Internet access. A recent U.S. Department of Commerce report on the Digital Divide revealed that eight percent of African Americans and nine percent of Hispanics have Internet access from any location, including home, work, school, or library. (National Telecommunications and Information Administration, U.S. Department of Commerce, Falling Through the Net II: New Data on the Digital Divide, [1999].) This is compared to twenty-one percent of Caucasian households that have access. (Id.)
During one of the floor debates on Assembly Bill 2519 it was argued that Internet voting would create a biased result due to different districts having less access to the Internet than others do. (Assembly Debate [May 25, 2000] [statement of Assemblymember Roderick Wright].) While some more affluent districts have a sixty to seventy percent Internet access rate, districts encompassing Fresno, Bakersfield, and Los Angeles have less than 10% Internet access. (Id.)
The Voting Integrity Project (VIP) and two Arizona democratic voters, one an African American male and the other a Hispanic female, initiated a lawsuit to enjoin the use of Internet voting in Arizona's presidential primary. (VIP Files Voting Rights Lawsuit to Block Internet Voting in Arizona Democratic Primary, U.S. Newswire, Jan. 21, 2000, available at http://www.lexis.com/research/ retrieve/frames?>.) The opinion in VIP v. Fleisher, No. CIV 000109 Phx. Pgr (D. Ariz.), was ordered unpublished by the U.S. District Court Judge. (Telephone Interview with Mr. Miller Baker, Counsel for VIP, [Thursday, June 29, 2000].) The injunction was based on the grounds that it unfairly discriminates against African American, Native American, and Hispanic voters in violation of the 15th Amend. (U.S. Newswire, supra, Jan. 21, 2000.) The lawsuit alleged that the Arizona Democratic Party was adopting a racially discriminatory voting scheme that would exacerbate the "Digital Divide" by excluding from the experiment minority and poor voters who do not have access to the Internet. (VIP: Arizona Democrats Claim Exemption From Voting Rights Act, U.S. Newswire, Feb. 7, 2000, available at <http://www.lexis.com/research/ retrieve/frames?>.)
A District Court judge denied the injunction, stating that there remain too many questions about the Digital Divide, and the availability of county owned computers with Internet access for voters' use. (Arizona's Internet Primary Cleared, Associated Press, Feb. 29, 2000, available at <http://www.lexis.com/research/retrieve/frames?>.) The Justice Department is charged with reviewing and approving (known as "preclearance") any state or local government's proposed changes to voting procedures. (42 U.S.C. § 1973(c).) In performing this duty, the Justice Department supported the District Court's ruling that Arizona's proposed implementation of Internet voting had no inherent conflicts with minority groups. (Brian Krebs, Net Voting Alliance to Propose Standards for Online Elections, Newsbytes, Feb. 28, 2000, available at <http://www.lexis.com/research/ retrieve/frames?>.) The reason was that traditional ballots would be available in addition to online voting.
The Voting Rights Act of 1965 states in pertinent part, "To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote. because of his failure to comply with any test or device in any State.." (42 U.S.C. § 1973(b).) Studies such as the previously discussed Department of Commerce's report on the Digital Divide show that nearly three times as many Caucasian households have internet access as African American and Hispanic households. Because of this discrepancy, Internet voting could be in violation of the Voting Rights Act of 1965 by broadening the access of voting to one segment of the population who has access to a "device" that is significantly more unavailable to other population segments.
The 24th Amendment was adopted to prevent citizens from being unable to vote as a result of a financial barrier enacted in the form of a poll tax or some other tax. (U.S. Const. amend. XIV, §1.) The Digital Divide is seen by some as the very type of financial barrier that the 24th Amendment was meant to prevent, whereby those with fewer financial resources will have less access to vote. (Interview with Alfred Charles, Task Force Chair and Assistant Secretary for e-Government for the Secretary of State, in Sacramento, Cal. [June 9, 2000].) The argument that Internet voting will violate the 24th Amendment requires analogizing the financial burden of acquiring a computer and Internet access in order to vote with paying a poll tax. (Id.)
The Secretary of State's Task Force addressed this problem by proposing that computers be installed in publicly accessible facilities, thereby providing access to voting for those who otherwise would not have access to an Internet connection. (California Internet Voting Task Force, Report on the Feasibility of Internet Voting, 35 [Secretary of State 2000].)
The difficulty is that while proposed facilities such as schools, public libraries, public housing centers, Employment Development Department job centers, and National Guard Centers, are or soon will be equipped with computers and Internet connectivity, not all may be appropriate as Internet polling places. (Id.) Established polling sites have traditionally been located in neighborhood garages, school cafeterias and gymnasiums, and these localities rarely have Internet access. (Interview with Alfred Charles, Task Force Chair and Assistant Secretary for e-Government for the Secretary of State, in Sacramento, Cal. [June 9, 2000].) Another suggestion was to purchase computers for Internet voting, which then could be used by the counties year-round. The computers would be reserved for voting only one day, instead of the current process where traditional voting machines are used one day a year and stored the other 364. (Margaret Johnston, Remote Alaskans to Vote Using Internet, Network World Fusion, Jan. 24, 2000, available at <http://www.lexis.com/research/ retrieve/frames?>.) However, which government agencies would give up the 30,000 computers to be placed in the 15,000 California polling sites, for at least a two day period, rendering those offices unusable? (Interview with Alfred Charles, Task Force Chair and Assistant Secretary for e-Government for the Secretary of State, in Sacramento, Cal. [June 9, 2000].) The logistics just don't seem to be feasible. (Id.)
B. State Constitution
California presents an additional constitutional issue, protecting the voter's right to privacy. Article II Sec. 7 specifies that, "[V]oting shall be secret." (C.A. Const. art. II § 7 [West 2000].)
"Unless the voter is required to cast his ballot in secret. the voter may demonstrate to another person how he has cast his ballot, opening the door to fraud, coercion, intimidation, and undue influence." (Peterson v. City of San Diego, 34 Cal. 3d 225, 227 (1983).) In Peterson, the California Supreme Court dealt with an issue similar to the secret vote aspect of Internet voting. In Peterson, the Court held that the secrecy provision of our Constitution was never intended to preclude reasonable measures to facilitate and increase exercise of the right to vote such as absentee and mail ballot voting. (Id. at 230) The Court reasoned that, "the fundamental importance of the right to vote persuades us that reasonable efforts by the Legislature to facilitate and increase its exercise must be upheld. Too often citizens are faced with numerous pressures on their time and with the inconvenience of appearing at the polling place have chosen to forego exercise of the precious right. Reducing or eliminating the burdens and inconvenience of voting and thereby increasing voter participation is not only a proper subject of legislation but also fundamental to the maintenance of our representative government." (Id.) The Court concluded that it may not be assumed that the secrecy provision was designed to serve a purpose other than its obvious one of protecting the voter's right to act in secret, when such an assumption would impair rather than facilitate exercise of the fundamental right. (Id.) Based on Peterson it would appear that the California Supreme Court would favor Internet voting's reduction of burdens of voting and increased voter participation, as long as the threat of the vote being non-secret is minimal.
Any Internet voting program will have to ensure that the voter's ballot remains confidential. (Interview with Alfred Charles, Task Force Chair and Assistant Secretary for e-Government for the Secretary of State, in Sacramento, Cal. [June 9, 2000].) One privacy concern is based on the premise that many voters' primary method of access to the Internet will be from the workplace. (California Internet Voting Task Force, Report on the Feasibility of Internet Voting, 41 [Secretary of State 2000].) If a workstation is connected to a network, the network administrator has the capability to monitor the ballots or engage in coercion or vote tampering in an effort to influence employees' votes. (Id.) The Task Force's recommendation includes ensuring stiff penalties against an employer who violates an employee's privacy in this manner. (Id.) But, this is in conflict with other laws that permit employers to monitor such things as employee's e-mails and Internet access. (Telephone Interview with Fred Adler, President Citiscape Multimedia Strategy, [Monday June 19, 2000].)
Additional privacy concerns are raised when county election officials receive the ballot. If encryption is used to vote online, privacy might be breached after the vote gets to the elections office, and the vote is tabulated. (All Things Considered: Analysis: California Commission finds Online Elections Would Face some Tough Obstacles, [National Public Radio broadcast, Dec. 22, 1999] [transcript on file with California Initiative Review].)
The Constitutional issues do not seem insurmountable. The United States Department of Justice has stated that as long as sufficient Internet access is provided to the public by the county, then the lack of access argument is nullified. (Brian Krebs, Net Voting Alliance to Propose Standards for Online Elections, Newsbytes, Feb. 28, 2000, available at <http://www.lexis.com/research/ retrieve/frames?>.) As far as retaining voter's privacy, it has been suggested that any Internet voting program may be required to check for a network connection, and if one is found then the program will not be capable of downloading onto that system. (Interview with Alfred Charles, Task Force Chair and Assistant Secretary for e-Government for the Secretary of State, in Sacramento, Cal. [June 9, 2000].)
V. Public Policy Considerations
One of the interesting aspects of Internet voting is that Proponents and Opponents have the same concerns, and the same goal. There are no real opponents, to the extent that no group is opposed to improving the accessibility of voting to the citizens. Those opposed to Internet voting are merely opposed to the system being set up incorrectly. (Deborah M. Phillips, The Voting Integrity Project, Are We Ready for Internet Voting? 6 [1999].)
Californians are split over the issue of Internet voting. In a survey conducted from November 29 to December 8, 1999, the Public Policy Institute of California found that 48 percent of Californians would oppose Internet voting, 47 percent would favor and five percent didn't know. (Mark Baldassare, Public Policy Institute of California, PPIC Statewide Survey: Californians and Their Government 31, at 33 [1999].) The survey also found that 46 percent of Californians would prefer to vote at the ballot box, 30 percent by Internet, 23 percent by absentee ballot and one percent didn't know.
With public confidence in Internet voting being precarious at best, California may have only one chance at establishing an Internet voting program. (Interview with Alfred Charles, Task Force Chair and Assistant Secretary for e-Government for the Secretary of State, in Sacramento, Cal. [June 9, 2000].) If a program is rushed into, and the integrity of the vote is affected, voter privacy is breached, or the Digital Divide occurs, the public may never regain trust in Internet voting. (Id.) An important aspect of Internet voting, and one that should be repeated often to the voters, is that Internet voting will only be a supplement to traditional methods of voting. (Id.)
Support:
Proponents of Internet voting include California Secretary of State Bill Jones, Fred Adler (the proponent of one of the proposed Internet voting initiatives), members of the state assembly, and even both political parties, who, in different states, experimented Internet voting in the past presidential primaries.
Although the Secretary of State's office supports the idea of Internet voting, the Task Force's findings led them to understand the potential problems, and that there has to be zero tolerance for fraud and abuse in the system. (Morning Edition: Analysis: California Commission finds Online Elections Would Face Some Tough Obstacles, [National Public Radio broadcast, Dec. 22, 1999] [Transcript available at California Initiative Review].)
Assemblymember Jim Cuneen (R- Cupertino) stressed the importance of maintaining integrity in the system when he argued that the Secretary of State's four-stage proposal is the best way to ensure that Internet voting gets implemented correctly. (Assembly Debate [May 25, 2000] [statement of Assemblymember Jim Cunneen].) Assemblymember Cunneen's opinion on this topic is especially intriguing because his district encompasses the Silicon Valley, including San Jose, Los Altos, and Sunnyvale. Considering the likelihood that the software and hardware to run Internet voting would come from the Silicon Valley, Assemblymember Cunneen's constituents have as much to gain by the implementing of Internet voting. But, if Internet voting is rushed into, and an adverse event does occur, then those constituents have as much, if not more to lose.
Even proponents who recognize that Internet voting is the wave of the future appreciate that Internet voting will require advances in technology to prevent "cybercheating" at the ballot box. (Pat Maroney, South Carolina Democratic Chairman, Voter.com Official to Meet Party Chairman, The Charleston Gazette, Apr. 4, 2000 at C1.)
The main reason stated for the need of an Internet voting program is to increase voter turn out. (California Internet Voting Task Force, Report on the Feasibility of Internet Voting, 36 [Secretary of State 2000].) America is one of the most rural countries in the world, and as a result a lot of people live more than an hour away from the nearest polling place. (Sam Diaz, Arizona Democrats Can Vote Online in Primary, Knight-Ridder Trib. Bus. News, March 3, 2000, available at <http://www.lexis.com/research/ retrieve/frames?>.) Internet voting provides opportunity to vote. (Id.)
The necessity of increasing American participation in our electoral process is evidenced by the fact that ten million fewer Americans voted in 1996 than in 1992, resulting in participation that was its lowest since 1920 when the 19th Amendment gave women the right to vote. (All Things Considered, Commentary: Allow People to Register to Vote Online, [National Public Radio broadcast August 10, 1999] [transcript available at California Initiative Review].) A Federal Elections Commission Report shows that 100 million Americans did not exercise their right to vote in the 1996 general election. (Id.) In fact, half of these non-voters did not even register. (Id.) As reported by the U.S. Census bureau, the reasons for low turnout include voter apathy and lack of time. (Id.)
The most appealing aspect of Internet voting is the possibility of creating a method of voting that is convenient enough to bring back a majority of those 100 million non-voters to the polls. A Federal Elections Commission report shows that the age group least likely to vote is the group aged 18-24. During the 1996 elections, less than one-third of 18-24 year olds voted in the presidential election. (Federal Elections Comm'n, Voter Registration and Turnout in Federal Elections by Age 1972-1996, available at http://www.fec.gov/pages/agedemog.htm.) The Public Policy Institute of California reports that 73 percent of 18-24 year old Californians either often or sometimes have access to the Internet and email. (California Internet Voting Task Force, Report on the Feasibility of Internet Voting, 43 [Secretary of State 2000].) The rationale is that if a non-voter is already connected to the Internet, he would be more likely to take a few minutes and vote, even if that same individual would not make the small effort to go to his neighborhood polling site and vote.
An additional benefit of Internet voting would be the saving in the cost of the election. While Internet voting would cost approximately six dollars per vote and traditional voting methods only range between three and five dollars per vote, a saving would be realized in the cost of the voting equipment. (Interview with Alfred Charles, Task Force Chair and Assistant Secretary for e-Government for the Secretary of State, in Sacramento, Cal. [June 9, 2000].) Traditional election equipment costs between two thousand dollars and seven thousand dollars per unit, while a personal computer capable of performing the tasks required for Internet voting can be purchased for less than twelve hundred dollars each. (Id.)
Internet voting is not a question of whether it will happen, the only questions are when will it be applicable and in what form.
Opposition:
There are those who strongly believe that initiating an insecure Internet voting program will necessarily destroy the integrity of the vote. (Interview with Alfred Charles, Task Force Chair and Assistant Secretary for e-Government for the Secretary of State, in Sacramento, Cal. [June 9, 2000].) It remains to be seen whether these people are merely concocting a conspiracy theory, but their claim may not be far fetched. Consider the controversy regarding the alleged influence purchasing by China's donation to the Democratic Party. Is it unimaginable that a foreign nation may want an election to result in a specific outcome, even to the extent of sabotaging an election to ensure that result? The Voting Integrity Project believes that certain precautions need to take place prior to the utilization of an Internet voting program to safeguard against corruption. These precautions include having elections officials educate citizens and clear voter registration rolls of duplicate names. ( Morning Edition: Analysis: California commission finds online elections would face some tough obstacles [National Public Radio broadcast Dec. 22, 1999] [Transcript available at California Initiative Review}.)
VI. Internet Voting in Other States:
A. Alaska
Alaska represents a perfect scenario for the implementation of an Internet voting program. In January, the month of the non-binding presidential straw poll in Alaska, a voter must face certain obstacles that are unique to Alaska. These difficulties include darkness for up to 20 hours a day and hours of travel through snow and freezing temperatures to vote. (Margaret Johnston, Remote Alaskans to Vote Using Internet, Network World Fusion, Jan. 24, 2000, available at http://www.lexis.com/ research/retrieve/frames?.) The alternative was tried in a Republican straw poll. Voters in 3 territories were able to cast their ballots either from their own PC or a Net-enabled PC at a polling station by going to Votehere.com's Web site. (Id.) System security included ensuring that the voter's privacy would be guaranteed by giving the "keys" to downloading and to un-encrypting the ballots to the voting authority, the same group responsible for traditional paper ballots. (Id.) The web site utilized 1,024-bite encryption to deter hackers. (Id.) Voters used a floppy disk with a unique "digital signature" to authenticate their identities online. (Sam Diaz, Arizona Democrats Can Vote Online in Primary, Knight- Ridder Trib. Bus. News, Mar. 3, 2000, available at http://www.lexis.com/research/retrieve/frames?.) Even though Internet voting performed well in the straw poll, the Alaska Division of Elections has not undertaken any proceedings to implement or even to assess the feasibility of Internet voting. The Alaskan Republican Party implemented the use of the Internet voting in the straw poll, without the support from the Alaska Division of Elections. (Telephone Interview with Tom McKay, Alaskan Republican Party. [July 5, 2000].)
B. Arizona
March 7, 2000 was the Internet voting debut in Arizona when the Democratic Party utilized it for the presidential primary. (Scott Thomsen, State Democrats Set Up Online Primary Election Is 1st of its Kind, Party Officials Say, Ariz. Rep., Jan. 15, 2000 at B4.) March 7th also represented the first time Americans cast their ballots over the Internet in a legally binding statewide election. (Super Tuesday: Arizona Votes Online, Globe & Mail [Toronto ], Mar. 8, 2000 A8.) If a voter wished to vote from home the process began with the voter ensuring he was a registered Democrat by January 22. If a voter failed to register by January 22, he could still take part in the Internet voting by showing up at the polling site in person as late as March 11th, registering as a Democrat, and voting on an Internet terminal provided at each polling site. (Scott Thomsen, State Democrats Set Up Online Primary Election Is 1st of its Kind, Party Officials Say, Ariz. Rep., Jan. 15, 2000 at B4.) Once the state election officials received the voter registration forms a registration list was set, followed by the Democratic Party mailing a letter to each of the 824,000 registered Democrats that included a personal identification number (PIN) for online voting. (Id.) Remote Internet voting was available through the party's Web site. (Id.) Voters were asked to provide their PIN number and personal information to verify their registration. (Id.)
Voters were able to cast their votes via the Internet starting at 12:01 a.m. Tuesday, March 7th, and continuing until polls closed on 11:59 p.m. on Friday, March 10th. (Super Tuesday: Arizona Votes Online, Globe & Mail [Toronto], Mar. 8, 2000 at A8.) When it was all over 39,942 Arizona Democrats utilized the Internet to cast their vote, nearly half of the 86,907 total votes. (Id.) The primary turnout set a record as the largest since the Democratic Party began conducting primaries in 1984. (Id.) Districts, including some in Maricopa and Pima Counties, had voter turnout at over a thousand percent increase from turnout rates in the 1996 elections. (Analysis of Voting Turnout by County, Arizona Democratic Party, [May 2000].) All but three of the thirty-eight voting districts within Arizona's fifteen counties had increased voter turnout that exceeded a three hundred and fifty percent increase from the 1996 election year. (Id.)
The use of Internet voting was not only successful in the record setting total turnout, but the feared effect of the Digital Divide was never realized. In fact the Native American turnout was four times that in previous elections. (Telephone Interview with Laurie Larson, Official with the Arizona Democratic Party. [July 10, 2000].) Apache County had a 78.6 percent turnout by the Native American community. (Analysis of Voting Turnout by County, Arizona Democratic Party, [May 2000].) Navajo County had a 53.1 percent turnout by the Native American community. (Id.) These high turnout rates were despite the fact that Native Americans have, on the average, one computer per every five households. (Telephone Interview with Laurie Larson, Official with the Arizona Democratic Party. [July 10, 2000].)
Even with such a successful turnout in the primary, the Arizona Secretary of State's office has no intentions of following the Arizona's Democratic Party's lead in pursuing Internet voting in the near future. (Telephone Interview with Mary Joe Kief, Assistant Election Director, Arizona Secretary of State. [July 12, 2000].) The Secretary of State's office will not initiate an inquiry into Internet voting until a vender of Internet voting software or hardware requests approval of the company's equipment for use in Arizona elections. (Id.) Under Arizona law, a vender who attempts to provide the state with new voting equipment must have the equipment certified by an independent agency. (Ariz. Rev. Stat. § 16442 [West 2000].) The Secretary of State will appoint a committee to investigate and test the various types of vote recording or tabulating machines or devices. The committee will then submit their recommendations to the Secretary of State who will make final adoption of the type or types, make or makes, model or models to be used. (Id.) Until the time that a vender initiates the inquiry into the benefits of Internet voting, Arizona will have to rely on non-government organizations to lead the effort.
C. Washington
The state of Washington Secretary of State's office has been active in evaluating the possibility of Internet voting. A paper written by David Elliott, Assistant Director of Elections for the State of Washington, lays out the basic benefits of Internet voting, namely greater voter turnout, and the basic threats to the integrity of the vote. (David M. Elliott, Examining Internet Voting in Washington 1 [2000].) It appears that Washington's approach to Internet voting is similar to California's. The paper introduces three Internet voting models including the use of regional voting centers, and two systems that utilize individual's personal computers. (Id. at 2.) The regional voting center is similar to California's Secretary of State's proposed Stage Two, whereby a voter could vote from any polling site within their county. (Id.) The second includes downloading the ballot from a web site and either mailing in a printed hardcopy with an actual signature, or submitting the ballot via secured e-mail. (Id.) The third model is similar to California's proposed Stage Four, whereby a voter would sign in to a web site and submit their ballot. (Id.) Washington has taken the initial steps towards understanding the issues surrounding Internet voting, and appears to be watching the developments in California. Most states will likely do the same, and choose not to make the investment that California did in establishing an eleven month task force to develop an understanding of the possibilities as well as insurmountable obstacles involved with Internet voting.
D. Other States
Other states are reviewing the possibilities of Internet voting. VoteHere.net, the company that performed the Alaska straw poll, has tested its technology at polling stations in Washington, Iowa, Illinois, and Virginia, with very favorable responses from voters who have tried the system. (Margaret Johnston, Remote Alaskans to Vote Using Internet, Network World Fusion, Jan. 24, 2000, available at http://www.lexis.com/research/retrieve/frames?.)
VII. Conclusion
California will most likely implement the Secretary of State's Task Force recommendations, or some version of it, when establishing a program for Internet Voting. Whether or not the technology will create a system secure enough to allow for voting from a home personal computer is to be seen. There will be attempted breaches of any security system implemented, whether the purpose is for a political benefit, or purely mischievous. As long as the proper steps continue to be taken to balance the technological issues with the Constitutional protections established for voting, California is certain to benefit from having greater participation by voters in the shaping the future.
While Internet voting is quickly becoming a topic in vogue with the mainstream media, Internet voting must to be approached in a cautious manner, and the temptations to take short cuts must be avoided, giving the program an opportunity to be successful.