Ad Hoc Committee on Elections

AGENDA OF THE AD HOC COMMITTEE ON ELECTIONS THURSDAY, MAY 28, 2020, 5:00 PM Virtual Meeting Please also view at www.YouTube/CityOfGreenBay A. Zoom Meeting Information 1. This item contains documents which provide call in information and instructions for the Zoom Meeting. B. Roll Call. 1. Alder Barbara Dorff; Alder Chris Wery; Clerk Teske; Chief of Staff Jeffreys; Terri Racine; Karen Schley, Susan Smith; H. Smet; Prof. Alison Staudinger. C. Approval of the Agenda. 1. Approval of the Agenda for May 28, 2020. D. Approval of Minutes. 1. Approval of the Minutes from May 21, 2020. E. Regular Business. 1. Consideration with possible action on newly identified and/or secured polling locations. (Polling Location Subcommittee) 2. Consideration with possible action on efforts to recruit new poll workers. (Poll Worker-- Retention and Recruitment Subcommittee) 3. Consideration with possible action on creating an outreach effort for absentee voting. (Early In-Person Absentee Voting and Absentee Voting Subcommittee) 4. Consideration with possible action on identifying voters' responsibilities and the clerk's office sphere of control. Agenda of the Ad Hoc Committee on Elections May 28, 2020 Page 1 F. Informational. 1. Status report on poll workers and polling locations (both from current pool). 2. Report on impending deadlines. 3. Update on acquisition and cost of equipment. 4. "Fair Elections During a Crisis." G. Adjournment. 1) THIS MEETING IS RECORDED: THE VIDEO OF THIS MEETING AND MINUTES ARE AVAILABLE ONLINE AT www.greenbaywi.gov 2) ACCESSIBILITY: Any person wishing to attend who requires special accommodation because of a disability, should contact the City Safety Manager at 920-448-3125 at least 48 hours before the scheduled meeting time so that arrangements can be made. 3) QUORUM: Please take notice that a majority or quorum of the Common Council will attend this Ad Hoc Committee meeting and will constitute a meeting of the Common Council for purposes of discussion and information gathering relative to this agenda. 4) REPRESENTATION: The party requesting the communication, or their representative, should be present at this meeting. Agenda of the Ad Hoc Committee on Elections May 28, 2020 Page 2 Agenda of the Common Council Meeting of the Page 3 Virtual Meeting Instructions Ad Hoc Committee on Elections for 5-28-20 Zoom Meeting Information Join Zoom Meeting https://us02web.zoom.us/j/84227682129?pwd=UU84T1lOZHdNd25iVjVzSGlOWlRpZz09 Meeting ID: 842 2768 2129 Password: 441284 One tap mobile +13017158592,,84227682129#,,1#,441284# US (Germantown) +13126266799,,84227682129#,,1#,441284# US (Chicago) Dial by your location +1 301 715 8592 US (Germantown) +1 312 626 6799 US (Chicago) +1 929 205 6099 US (New York) +1 253 215 8782 US (Tacoma) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Meeting ID: 842 2768 2129 Password: 441284 Find your local number: https://us02web.zoom.us/u/kNXX2DRtU 1 Zoom Meeting Instructions for Members and Persons Attending Meetings—City of Green Bay Additional Information 1. Wisconsin Open Meetings Law still applies a. Persons interested in speaking to an item must give their name and address b. Committee/Commission/Board members will still follow Roberts Rules of Order 2. All zoom meetings will have a password in the instructions. Please enter when prompted. 3. Please log into the Zoom meeting 10 minutes before the meeting starts to ensure proper technology is working. a. If you are a Board Member, please log into CivicClerk with a computer, laptop, or tablet device. 4. Once you are in the meeting please mute yourselves. a. You may unmute yourself when you are called upon to speak. 5. Waiting room a. When you call in, all callers/participants will be placed in a “waiting room.” b. Persons on the agenda will be admitted to the meeting, and then once the item is concluded, the host will permanently mute you from the meeting (you can still hear the meeting). 6. Using Zoom with a tablet or computer a. Tablet—you will be asked to sign in. Download the app either with the Apple Store or the Play Store b. Computer—you will be asked to sign in. You may download the app or click on the link to open Zoom in your browser. 7. Registering a. The host may ask you to register for the meeting. A registration link will be sent to you along with the invite. You’ll receive another email confirming that you’re registered for the meeting. b. If you’re using a phone, your registration will still be tied to an email. 8. Raising your hand a. Committee members—you can either use CivicClerk and request to speak or you can “raise your hand” in the zoom meeting (you’d need to use a computer or tablet) to let the host know you’d like to speak. You can also un-mute yourselves and start speaking. b. Persons on the agenda—you can “raise your hand” but you’d need to use a computer. You will be allowed to speak, per Wisconsin Open Meetings Rules, once the committee has “opened the floor for interested parties to speak.” Once the committee is finished with your agenda item, the host will mute you permanently, unless the committee opens the floor again. 9. What devices should I use? a. Smart phone (please see more detailed instructions on page 3) b. Land line c. Tablet—well in advance of the meeting, please download the Zoom Meeting app before you join a meeting by using either the Apple Store or the Play Store. You will be asked to input your name, thus identifying you for the meeting. You’ll also be asked to verify your email. d. Computer—well in advance of the meeting, please download the Zoom Meeting app, but you can also click on a link to open the Zoom Meeting in your browser. You will be asked to input your name, thus identifying you for the meeting. e. For tablet and computer users--if you download the app you will be asked to verify your email. 10. Zoom etiquette a. Muting yourselves when you’re not talking will prevent your background noise from interfering with others’ ability to listen to and participate in the meeting. b. If you’re using a telephone, please identify yourself with your phone number and name before you speak. Zoom meeting hosts can see only your telephone number and will ask you to identify yourselves. 11. Closed session a. Persons in the Zoom meeting will be put into a waiting room while the committee meets in Closed Session. Participants will be admitted back into the Zoom meeting once the committee reconvenes in Open Session. b. Persons watching live on YouTube will see a gray screen with the City logo during closed session. 12. Persons interested in listening to the meeting can go to www.youtube.com/CityofGreenBay 2 Zoom Meeting Instructions for Members and Persons Attending Meetings—City of Green Bay Calling into the Zoom meeting using a smartphone 1. Dial the phone number listed at the beginning of this document. 2. When prompted, enter the Meeting ID number followed by # a. If you’re using a smartphone, you can access the keypad by clicking “Keypad” on your screen 3. Once you are in the meeting, notify the meeting host that you are in and state your name. 4. If you do not need to talk, please make sure your phone is on Mute a. If you’re using a smartphone, look at your screen and click the Mute button b. If you’re using a computer, you should see a Mute button in the Zoom application 3 Zoom Meeting Instructions for Members and Persons Attending Meetings—City of Green Bay  Report to the Ad Hoc Committee on Elections of the City of Green Bay MEETING DATE PREPARED BY May 28, 2020 AGENDA ITEM # C.1 Approval of the Agenda for May 28, 2020. BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS None 100 North Jefferson Street, Green Bay, Wisconsin 54301-5026 greenbaywi.gov  Report to the Ad Hoc Committee on Elections of the City of Green Bay MEETING DATE PREPARED BY May 28, 2020 AGENDA ITEM # D.1 Approval of the Minutes from May 21, 2020. BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS None 100 North Jefferson Street, Green Bay, Wisconsin 54301-5026 greenbaywi.gov  Report to the Ad Hoc Committee on Elections of the City of Green Bay MEETING DATE PREPARED BY May 28, 2020 AGENDA ITEM # E.2 Consideration with possible action on efforts to recruit new poll workers. (Poll Worker--Retention and Recruitment Subcommittee) BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS None 100 North Jefferson Street, Green Bay, Wisconsin 54301-5026 greenbaywi.gov  Report to the Ad Hoc Committee on Elections of the City of Green Bay MEETING DATE PREPARED BY May 28, 2020 AGENDA ITEM # E.3 Consideration with possible action on creating an outreach effort for absentee voting. (Early In-Person Absentee Voting and Absentee Voting Subcommittee) BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS None 100 North Jefferson Street, Green Bay, Wisconsin 54301-5026 greenbaywi.gov  Report to the Ad Hoc Committee on Elections of the City of Green Bay MEETING DATE PREPARED BY May 28, 2020 AGENDA ITEM # E.4 Consideration with possible action on identifying voters' responsibilities and the clerk's office sphere of control. BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS None 100 North Jefferson Street, Green Bay, Wisconsin 54301-5026 greenbaywi.gov  Report to the Ad Hoc Committee on Elections of the City of Green Bay MEETING DATE PREPARED BY May 28, 2020 AGENDA ITEM # F.1 Status report on poll workers and polling locations (both from current pool). BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS 1. 2020-05-28 polling location update--for cmte 100 North Jefferson Street, Green Bay, Wisconsin 54301-5026 greenbaywi.gov Polling Location Wards Polling Location StatusPolling Equipment August Status UWGB 1,2, and 3 NO YES YES Christ of the Bay Lutheran 4 and 19 Church YES YES YES Atonement Lutheran 5 Church and 8 NO YES YES Fire Station #5 6 and 7 NO NO Salvation Army Kroc 9Center and 14 YES YES YES St. Bernard Parish 10 and 18 YES YES YES Central Assembly of God11 and Church 12 YES YES YES SS Peter and Paul Catholic 13 and 20 YES NO NO First United Church of Christ 15 YES YES Union Congregrational Church of Christ 16 NO YES Our Saviour Lutheran Church 17 NO YES Green Bay Metro Transit21 and Center 27 YES YES YES Curative Connections 22 and 23 YES YES YES Geen Bay Labor Temple 24 YES YES YES The Salvation Army 25 MAYBE YES MAYBE Neighborworks 26 YES YES YES First Presbyterian Church 28 and 30 MAYBE YES MAYBE Trintiy Lutheran Church 29 YES YES MAYBE St. Joseph Church 31 and 34 YES YES YES Redeemer Lutheran Church 32 YES YES YES Calvary Lutheran Church33 and 35 YES LM YES Seventh- Day Adventist36 and Church37 YES NO St. Paul's United Methodist Church 38 YES/MAYBE LM YES Bethel Evangelical Lutheran Church 39 NO LM MAYBE St. Jude Church 40 YES YES YES St. Elizabeth Ann Seton41 and 45 NO YES NO Living Hope Church 42 and 43 YES Will Check Bridge Point Church 44 YES YES YES Church of Christ 46 YES YES Green Bay Botanical Gardens 47 NO NO MAYBE November Status YES YES YES MAYBE YES YES MAYBE YES YES YES MAYBE YES MAYBE MAYBE MAYBE YES YES YES MAYBE MAYBE MAYBE YES YES MAYBE  Report to the Ad Hoc Committee on Elections of the City of Green Bay MEETING DATE PREPARED BY May 28, 2020 AGENDA ITEM # F.2 Report on impending deadlines. BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS None 100 North Jefferson Street, Green Bay, Wisconsin 54301-5026 greenbaywi.gov  Report to the Ad Hoc Committee on Elections of the City of Green Bay MEETING DATE PREPARED BY May 28, 2020 AGENDA ITEM # F.3 Update on acquisition and cost of equipment. BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS 1. 2020-05 Equipment 2. Brown County DS450 Quote 5-22-20 Revised 100 North Jefferson Street, Green Bay, Wisconsin 54301-5026 greenbaywi.gov Equipment for Election 2020 PPE for poll workers # of workers $/item total gowns hair nets face shields gloves hand sanitizer cough guards poll worker training # of attendees $/class total course course course Election Equipment DS 450 cost/item total Polling locations cost/location total current loc. new locations Staff election techs DPW  Purchase Proposal Quote Submitted by Election Systems & Software Purchase Solution Includes: Quantity Item Description Price Tabulation Hardware Model DS450 High Speed Digital Image Scanner: 1 Model DS450 (Includes Scanner, Steel Table/Cart, Start-up Kit, Dust Cover, Reports Printer, Audit Printer, Battery Backup, Two (2) USB $51,450.00 Cables, and Two (2) Standard 8GB Memory Devices) 1 Ballot Joggers $950.00 1 Standard 8GB Memory Device (Additional) $210.00 Election Services 1 Implementation Services (Does not include Coding, Voice Files or Ballots) $1,700.00 X DS450 Training 1 Election On-Site Support $4,675.00 X Equipment Installation $1,925.00 X 1 Year Hardware and Software Warranty Included Shipping & Other X Shipping and Handling $750.00 Total Purchase Solution $61,660.00 Annual Post-Warranty License and Maintenance and Support Fees (Fees are Based Upon a 1-Year Customer Commitment to Subscribe to the Following Services) Annual Post-Warranty Hardware Maintenance and Support Fees: 1 HMA DS450 - Extended Warranty with Biennial Maintenance $1,895.00 Annual Post-Warranty Firmware License and Maintenance and Support Fees: 1 Firmware License - DS450 $1,575.00 Total Annual Post-Warranty License and Maintenance and Support Fees $3,470.00 Footnotes: 1. This quote is an estimate and is subject to final review and approval by both ES&S and the Customer. 2. Rates valid for 60 days and thereafter may change. 3. Any applicable (City & State) sales taxes have not been included in pricing and are the responsibility of the customer. 4. The quantity of service days reflects a reasonable estimate for implementation and selected ongoing election services. Quantities may change depending on specific Customer needs. Date Presented: 5/22/2020 Purchase Quote 1 of 1  Report to the Ad Hoc Committee on Elections of the City of Green Bay MEETING DATE PREPARED BY May 28, 2020 AGENDA ITEM # F.4 "Fair Elections During a Crisis." BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS 1. Fair Elections During a Crisis April 2020 100 North Jefferson Street, Green Bay, Wisconsin 54301-5026 greenbaywi.gov  Fair Elections During a Crisis: Urgent Recommendations in Law, Media, Politics, and Tech to Advance the Legitimacy of, and the Public’s Confidence in, the November 2020 U.S. Elections April 2020 AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY In conjunction with the UCI Jack W. Peltason Center for the Study of Democracy and with the generous support of the Democracy Fund, the William and Flora Hewlett Foundation, and the Mertz Gilmore Foundation This report is available for download at: https://law.uci.edu/2020ElectionReport LAW POLITICS MEDIA TECH  Fair Elections During a Crisis Members of the Ad Hoc Committee for 2020 Election Fairness and Legitimacy (Institutional affiliations are for identification purposes only; longer biographies of committee members appear in Appendix II of this Report. ) Andrew W. Appel Eugene Higgins Professor of Computer Science Princeton University Julia Azari Associate Professor of Political Science Marquette University Bruce E. Cain Professor of Political Science Stanford University Jack C. Doppelt Hamad bin Khalifa Al Thani Professor of Journalism Northwestern University Tiana Epps-Johnson Executive Director Center for Tech and Civic Life Edward B. Foley Ebersold Chair in Constitutional Law Director, Election Law Ohio State University Moritz College of Law John C. Fortier Director of Governmental Studies Bipartisan Policy Center Richard L. Hasen, Chair Chancellor’s Professor of Law and Political Science UC Irvine School of Law Liz Howard Counsel, Brennan Center for Justice NYU School of Law AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | i Fair Elections During a Crisis David Kaye Clinical Professor of Law UC Irvine School of Law UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression Jack Lerner Clinical Professor of Law Director, UCI Intellectual Property, Arts, and Technology Clinic UC Irvine School of Law Michael T. Morley Assistant Professor of Law Florida State University College of Law Janai S. Nelson Associate Director-Counsel NAACP Legal Defense and Educational Fund, Inc. Brendan Nyhan Professor of Government Dartmouth College Cailin O’Connor Associate Professor of Logic and Philosophy of Science UC Irvine Norman Ornstein Resident Scholar American Enterprise Institute Nina Perales Vice President of Litigation Mexican American Legal Defense and Educational Fund Nate Persily James B. McClatchy Professor of Law Stanford University Richard H. Pildes Sudler Family Professor of Constitutional Law New York University School of Law ii | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Bertrall Ross Chancellor’s Professor of Law UC Berkeley School of Law Alex Stamos Director, Stanford Internet Observatory Stanford University Charles Stewart III Kenan Sahin Distinguished Professor of Political Science MIT Michael Tesler Associate Professor of Political Science UC Irvine Ciara Torres-Spelliscy Professor of Law Stetson University College of Law James Owen Weatherall Professor of Logic and Philosophy of Science UC Irvine AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | iii Fair Elections During a Crisis Contents Members of the Ad Hoc Committee for 2020 Election Fairness and Legitimacy .......................................................................................................................... i Executive Summary ........................................................................................................ v Acknowledgements .................................................................................................... viii Background ...................................................................................................................... 1 The State of U.S. Elections and Voters’ Confidence in Election Results .............................. 1 The Need for Multifaceted Solutions: Law, Media, Politics and Norms, and Tech ............ 2 The Work of the Ad Hoc Committee ......................................................................................... 3 Recommendations .......................................................................................................... 5 Legal Changes for 2020 .............................................................................................................. 5 Media Changes for 2020 ............................................................................................................ 11 Politics and Norms Changes for 2020 .....................................................................................14 Tech Changes for 2020 ..............................................................................................................17 Conclusion ..................................................................................................................... 22 Endnotes ........................................................................................................................ 23 Appendix I: Other Reports on Election Reforms .............................................. 27 Appendix II: Brief Biographies of Ad Hoc Committee Members ................. 29 iv | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Executive Summary Even before the worldwide COVID-19 pandemic arrived in the United States, close observers of American democracy worried about the public’s faith and confidence in the results of the upcoming November 2020 U.S. elections. Although a decade ago concerns about peaceful transitions of power were less common, Americans can no longer take for granted that election losers will concede a closely- fought election after election authorities (or courts) have declared a winner. Current American politics feature severe hyperpolarization and an increasingly partisan media and social media environment. Mistrust is high. It is harder for voters to get reliable political information. Incendiary rhetoric about rigged or stolen elections is on the rise, and unsubstantiated claims of rigged elections find a receptive audience especially among those who are on the losing end of the election. American elections are highly decentralized, leaving pockets of weak election administration which can further undermine voter confidence in the process. April 7, 2020 Wisconsin Election: Linda Anne The COVID-19 pandemic, which hit the United States Valentino, who is immunocompromised, casts her vote at the Wilmot Fire Station after the absentee hard beginning in March 2020, has only ballot she requested mid-March never arrived. exacerbated concerns about the fairness and (Kenosha News/Jill Tatge Rozell – Reprinted with integrity of the 2020 elections. permission) The reasons for growing voter concern about the fairness and legitimacy of the U.S. election process are multifaceted, raising issues in law, media, politics and norms, and tech. This means that solutions to bolster American confidence in the fairness and accuracy of the elections must be multifaceted as well. Recognizing the need for multifaceted solutions to the issue of the legitimacy and acceptance of fair election results in the United States, Richard L. Hasen, Chancellor’s Professor of Law and Political Science at UC Irvine, convened both a conference and an ad hoc committee made up of a diverse group of leading scholars and leaders to tackle this issue from an interdisciplinary perspective. After public meetings and further online deliberations, this Committee makes the following fourteen recommendations for immediate change that should be implemented to increase voter confidence in the fairness and legitimacy of the 2020 elections. These recommendations listed below call for specific action from: journalists and editors deciding on headlines, what, and how to cover the election up to and including the election night itself; tech companies in the fray; legislators from federal to state to local levels; and nonprofits, citizens, and social media influencers: AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | v Fair Elections During a Crisis Legal Changes for 2020 Recommendation 1: States should adopt reforms to improve the absentee ballot and provisional ballot processes—both in terms of access and security. In particular, states should reduce the extent to which the counting of such ballots might be subject to counting delays that could cause significant shifts in vote margins after in-precinct returns are reported on election night. States should provide transparent information about absentee and provisional ballot counting and the number of ballots remaining to be counted. Recommendation 2: States should develop or revise election emergency plans well in advance of the elections so that they are robustly able to handle foreseeable contingencies, including the new threat to the November 2020 elections posed by COVID-19. These guidelines should provide generous opportunities for eligible voters to safely and securely cast ballots. Recommendation 3: States should modify election procedures as necessary to deal with the rise of COVID-19. Having a diversity of avenues for voting—in-person, absentee, curbside, on-site at hospitals and other such facilities—enhances the stability of the system, maximizing the likelihood that elections may continue despite whatever unexpected threat emerges. Online return of ballots should not be contemplated for the November 2020 elections. States should take steps to protect the transmission and accurate counting of the expected increase in the number of absentee ballots. Recommendation 4: The community of election law scholars should develop a non-partisan set of protocols for how best to resolve, consistent with rule-of-law and constitutional principles, vote- counting disputes that might render uncertain the outcome of the presidential election, including protocols for resolving interpretative ambiguities concerning the Electoral Count Act insofar as it governs the role of Congress in receiving and counting Electoral College votes from the states. Media Changes for 2020 Recommendation 5: Media organizations should engage in a public information effort to provide voters with accurate information about the process by which election officials count votes and determine election winners. The public education effort should include a simple citizen’s guide to election coverage and a one-stop shop for online information about election processes and outcomes. This information should be translated into as many languages as possible. Recommendation 6: Nonprofit organizations should facilitate journalistic training and coverage planning to help reporters and media outlets appropriately set expectations about the timing of election results and election procedures before the election and to accurately report on events as they develop. It is especially important for the media to convey to the public the idea that, given an expected increase in absentee ballot voting in the November 2020 elections, delays in election reporting are to be expected, not evidence of fraud, and that the 2020 presidential election may be “too early to call” until days after election day. vi | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Politics and Norms Changes for 2020 Recommendation 7: COVID-19 is going to increase the costs of elections as more voters, when they can, will choose to vote-by-mail and as safety precautions increase the costs of in-person voting. Congress and states should provide adequate funding to deal with the increased election costs that will be associated with COVID-19. Recommendation 8: Nonprofit organizations and foundations should establish an independent bipartisan Election Crisis Commission well before the elections to affirm a set of core principles that should govern elections and warn against the erosion of core democratic norms. The Commission should encourage candidates and other political actors to embrace those principles, and it should weigh in on post-election disputes, if necessary, to resolve them consistent with those principles. Recommendation 9: Election officials, government leaders, and others should embrace the democratic principle that all eligible voters, and only eligible voters, should be able to register and vote in a fair election with accurate vote-counting. Losers of fair elections should quickly accept election results once they are final. Elections, even those conducted during a crisis or emergency such as COVID-19, should be resolved consistent with fair election principles, recognizing and resolving disputes in good faith. Recommendation 10: Leaders in social media, election officials, government leaders, and others should promote the equal protection voting norm, enshrined in the Voting Rights Act and the Fourteenth and Fifteenth Amendments, which ban targeting voters based on race or ethnicity in an effort to suppress or dilute their vote. Social media companies have a unique responsibility to prevent the use of their platforms for efforts that would suppress votes through the spread of misinformation about voting. Tech Changes for 2020 Recommendation 11: To the extent possible, states should use paper ballots or electronic machinery that produces a voter-verifiable record of the voter’s choices, in the November 2020 elections to ensure the integrity of the outcome. States should audit election results, and work towards incorporating risk-limiting audits. Recommendation 12: Election administrators should create a resilient election infrastructure to deal with the unexpected, including complications related to COVID-19. Resiliency measures include having enough ballots on hand to accommodate high voter turnout, redundant election machinery, and paper copies of e-pollbook voter registration records. Recommendation 13: Election officials should obtain a .gov domain for an authenticated internet presence. They should secure “verified” status for their official accounts on social media platforms. Recommendation 14: State election officials should monitor and audit state voter registration databases. AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | vii Fair Elections During a Crisis Acknowledgements The work of this Committee would not have been possible without the support of the University of California, Irvine School of Law and its Dean, L. Song Richardson. Members of the UCI Law staff, especially Jillian Henry and Colleen Taricani, provided outstanding crucial support for the public conference, the final meeting, and the preparation of this report. Additional support came from the Jack W. Peltason Center for the Study of Democracy led by Graeme Boushey and Sara Goodman. Stacy Tran provided top-notch administrative assistance, and the UCI Law IT department led by Patty Furukawa provided crucial technical support. Vince Rini and Rabie Kadri beautifully designed the report. The Democracy Fund, the Hewlett Foundation, and the Mertz Gilmore Foundation provided strong financial support for the program; thanks to Adam Ambrogi, Jean Bordewich, and Trellis Stepter of the foundations for useful guidance. Suzanne Rotondo served as an excellent facilitator for this Committee’s deliberations. A number of speakers at the first public day of the conference, held February 28, 2020, provided valuable insight and wisdom for this Committee and the public. Thanks for the participation of the Honorable Jocelyn Benson, Patty Hansen, Jessica Huseman, Neal Kelley, the Honorable Frank LaRose, Noah Praetz, Amy Wilentz, and Kim Zetter. None of these conference speakers participated in the Committee deliberations or in the drafting of this report. Bruce Cain, Ned Foley, Liz Howard, and Brendan Nyhan served admirably as subgroup leaders on this Committee. Jonathan Cervas, Nathan Cisneros, Hannah Green, and Kennedy Holmes served as steady scribes for the Committee’s deliberations at its private meetings. Hannah Bartlett and Kayley Berger provided terrific additional research assistance in support of this Committee’s work. This Committee offers enormous thanks to everyone who contributed to this effort to support a vibrant and well-functioning American election system. Voters waiting to cast ballots at Washington High School, in Milwaukee, Wisconsin, April 7, 2020. (AP Photo/Morry Gash—Reprinted with permission) viii | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Background the November 2020 elections will not be run in a fair way and will not be perceived to have produced a clear winner and a The State of U.S. Elections and Voters’ legitimate result. For example, the 2020 Iowa Confidence in Election Results Democratic caucus (which was run by the state party, not Iowa election officials) turned Even before the worldwide COVID-19 into a debacle, with the party unable to pandemic arrived in the United States, close produce results on election night due to observers of American democracy worried changes in election reporting procedures and about the public’s faith and confidence in the problems with voting technology. 6 results of the upcoming November 2020 U.S. elections. Although a decade ago concerns Meanwhile, it is harder for voters to get about peaceful transitions of power were less reliable political information. Technological common, Americans can no longer take for changes, including the rise of social media, granted that election losers will concede a have both undermined traditional sources of closely-fought election after election reliable information for voters and enabled authorities (or courts) have declared a the spread of misinformation about elections, winner. campaigns, politicians, and the state of the world more generally. 7 In the 2016 U.S. Current American politics feature severe elections, Russian government actors hyperpolarization 1 and an increasingly attempted to sow discord via social media, partisan media and social media steal and release damaging political environment. 2 Mistrust is high. Incendiary information, and probe state voter rhetoric about rigged or stolen elections is registration databases, further giving voters on the rise, and unsubstantiated claims of reasons to doubt the fairness and security of rigged elections find a receptive audience the U.S. election system. 8 especially among those who are on the losing end of elections. 3 Election lawsuits It is no wonder that recent polling has found have nearly tripled in the post-2000 period that a substantial share of the U.S. compared to the period before 2000, in part population is worried that the 2020 general because of poorly drafted election laws and election will not be conducted fairly, and it unclear or unfair election procedures. 4 may be susceptible to foreign influence. In a PBS/NPR/Marist poll conducted in January Unlike nationalized elections using uniform 2020 before the COVID-19 pandemic hit, procedures and machinery as exists in most “[f]orty-one percent of those surveyed said other advanced democracies, elections in the they believed the U.S. is not very prepared United States are administered at the local or not prepared at all to keep November's level, meaning up to 10,000 different election safe and secure.” 9 Similarly, a Gallup electoral jurisdictions must conduct a single World Poll found that “[f]our in 10 Americans election for President ending on a single day (40%) interviewed in 2019 said they are in November. 5 Most election administrators confident in the honesty of elections in the in the United States do an admirable job country, while the majority (59%) said they often under severe budget constraints, but are not.” 10 pockets of election administrator incompetence and changes in election rules The COVID-19 pandemic, which hit the United and technology contribute to concerns that States hard beginning in March 2020, has only exacerbated concerns about the fairness AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 1 Fair Elections During a Crisis and integrity of the 2020 elections. Ohio costs range from $1.5 to $2 billion. 18 We postponed its primary the day before it was have nonetheless witnessed an emerging to take place because of public health partisan divide over whether increased use of concerns, 11 and Wisconsin officials fought the vote-by-mail option should be about whether its April 2020 election should encouraged for the 2020 elections, 19 and be delayed, with split opinions from the seen new concerns arise about the financial United States Supreme Court and the viability of the United States Postal Service, Wisconsin Supreme Court coming just hours which delivers vote-by-mail ballots. Further, before polls were scheduled to open. 12 A it is easy to imagine election misinformation number of other states postponed their related to the virus—such as false primaries, moving them into late spring and information about the safety of voting summer. Some states that went ahead with machines, polling place closures, or election their primaries saw polling place closures, delays—confusing voters and potentially missing poll workers and election judges, undermining voters’ confidence that a fair and concerns about proper sanitary election may be conducted in November conditions at in-person voting sites. 13 2020. Although we do not know what the conditions on the ground will look like during the fall voting season, it appears that virus-related concerns will put extra strain on already stretched election administrators seeking to conduct elections in a fair, safe, and inclusive manner and in a way that will lead American voters to have confidence in the vote count. The Need for Multifaceted Solutions: Law, Media, Politics and Norms, and Tech (Flickr/User C x 2) The reasons for growing voter concern about the fairness and legitimacy of the U.S. To cope with COVID-19, some states relaxed election process are multifaceted, raising their rules to allow for the easier casting of issues in law, media, politics and norms, and absentee ballots. But absentee ballot tech. This means that solutions to bolster rejection rates are higher than in-person American confidence in the fairness and ballots 14 and absentee ballot rejection rates accuracy of the elections must be potentially have a racially disparate effect on multifaceted as well. minority voters. 15 Further, although in-person voter fraud is rare, 16 absentee ballot For example, both Michigan and tampering is a legitimate concern because Pennsylvania recently changed election ballots are out of the control of election procedures so that anyone who wishes to officials and observers. vote-by-mail in the November 2020 election may do so without an excuse. 20 Even before Congress so far has allocated $400 million to the rise of COVID-19, election officials had states for increased costs associated with been bracing for a flood of new vote-by-mail running an election during the COVID-19 ballot requests and absentee ballots to pandemic; 17 estimates of the full additional 2 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis process. 21 Such processing takes additional The Work of the Ad Hoc Committee resources and time, and raises questions especially about the ability of large cities in these states to process absentee ballots Recognizing the need for multifaceted fairly and expeditiously. Due to these solutions to the issue of the legitimacy and changes, the winner of the presidential acceptance of fair election results in the election may not be known on election night, United States, Richard L. Hasen, Chancellor’s and it is possible that one candidate could Professor of Law and Political Science at the be ahead on election night in these states— University of California, Irvine, convened both perhaps even claiming victory and casting a conference and an ad hoc Committee to doubt over the ballots yet to be counted— tackle these questions from an while a week or so later a different candidate interdisciplinary and diverse perspective. is declared the winner. 22 There could then be (Appendix II lists brief biographies of competing candidates claiming victory. members of the Committee.) With generous funding from the Democracy Fund, the Minimizing the chances of such a problem Hewlett Foundation, and the Mertz Gilmore scenario requires changes before the election Foundation, the University of California, in law, media, politics and norms, and tech. Irvine, School of Law, in conjunction with the Legal changes for the processing of absentee University of California, Irvine’s Jack W. ballot envelopes and clarification of the rules Peltason Center for the Study of Democracy, for dealing with competing slates of electors held a conference on February 28, 2020, sent to Congress might be necessary. The entitled: “Can American Democracy Survive media should educate the public, well before the 2020 Elections?” 23 Participants at the election day, about the possibility of delays conference included members of the in vote counting and how such delays do not Committee, as well as election necessarily mean that anything nefarious is administrators, journalists, and the being done with ballots. Elected officials Secretaries of State of Ohio (Frank LaRose) should ensure that local election officials and Michigan (Jocelyn Benson). have adequate resources and competent leadership to process an expected flood of On February 29, 2020, members of the absentee ballots. Political leaders should Committee (but not the election come together and speak out against administrators, journalists, and Secretaries of candidates or groups who declare victory State) met for a private meeting, facilitated early or raise false claims about ballot by Suzanne Rotondo, dividing into tampering. Social media companies need to subgroups in law, media, politics and norms, take action to counter misinformation about and tech. The charge to each group was the voting procedures and the fairness of the same: come together with 3-4 concrete vote count. suggestions for steps that could be taken in advance of the 2020 elections to ensure the Each of these steps can help minimize the legitimacy of, and voter confidence in, the chances of an election meltdown in the November 2020 U.S. elections. The November 2020 elections. The more steps subgroups came back together as a single ad that can be taken from disparate areas of hoc committee to exchange ideas and American society and culture, the lower the feedback. risk of a significant portion of the American public viewing the 2020 elections as Members of the Committee recognized that illegitimate. there were many medium- to long-term AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 3 Fair Elections During a Crisis solutions that might be desirable for improving the conduct of elections in the United States. Many other groups and commissions have issued detailed reports for doing so, with some focused on particular issues such as election security or voting during emergencies. (Appendix I of this report lists and links to some of those other reports.) The Committee limited itself to considering improvements in law, media, politics and norms, and tech that could be accomplished before the 2020 elections, especially in light of the COVID-19 pandemic. Following the meeting, the four subgroups wrote up their draft recommendations, and Professor Hasen then integrated the four subgroup reports into a larger draft report. Committee members then gave feedback on the draft report. The final recommendations in each of the four areas are set out in the resulting report. This report of the Ad Hoc Committee for 2020 Election Fairness and Legitimacy represents the personal views of its members in their personal capacities. Members do not speak for their employers, organizations, or funders. 4 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Recommendations election totals after the initial election night count. Therefore, it is imperative that states Legal Changes for 2020 ensure that all eligible voters will have ample time to receive and cast a ballot that will be counted. Recommendation 1: States should adopt reforms to improve the absentee ballot To the extent permitted by each state’s laws, and provisional ballot processes—both in election officials should also amend terms of access and security. In particular, regulations or change policies to allow the states should reduce the extent to which processing of absentee ballots as early as the counting of such ballots might be possible. 25 They should complete all steps in subjected to counting delays that could the tabulation process except for the actual cause significant shifts in vote margins determination of the number of votes each after in-precinct returns are reported on candidate received so that as many ballots election night. States should provide as possible are counted by the end of transparent information about absentee election night. Particularly, if an unusually and provisional ballot counting and the large number of absentee ballots are cast as number of ballots remaining to be a result of COVID-19, delays in processing counted. them increases the likelihood that the candidate who is the apparent winner in a state on election night (with “100% of States should adopt reforms to improve the precincts reporting”) will not ultimately be absentee ballot and provisional ballot declared the winner there. Last-minute shifts processes. To begin with, delays in reporting in the outcome of a state’s election due to election results should be limited and the late-counted ballots, even when the process process for reporting the post-election daily is completely fair and honest, can updates of newly counted ballots should be substantially undermine public confidence in clear, public, and transparent. the integrity of the process and accuracy of the outcome. Several trends in the ways that states administer elections have led to a longer time to count ballots, report results, and certify election results. The longer time to count, report, and certify results is particularly problematic for the tight timeline of a presidential election. Some states’ anticipated timeline leaves them dangerously close to the time that presidential electors cast their ballots and even closer to the six- day safe harbor deadline that precedes it, leaving little time for recounts and contests to be resolved in time. 24 More importantly, the delay in counting, reporting, and The increase in mail and provisional ballots certifying invites a distrust of the election combined with policies in particular states process by some who do not understand are two of the chief drivers of a longer why there are counting delays at all and are counting and certification timeline. Worries particularly distrustful of the daily changes in about running an election in the time of AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 5 Fair Elections During a Crisis COVID-19 may increase both types of ballots reporting and percentage of outstanding in the November 2020 elections. ballots. They should try to identify, as best as possible, the number of provisional States should examine mail ballots as soon ballots outstanding that might be counted as possible after they arrive to identify and the universe of outstanding mail ballots potential problems with mail ballot (both the total number of mail ballots issued envelopes including signatures and missing vs. those returned and the estimated likely voter information. For ballots that lack return percentage). 26 Private groups may required information, where state law or a seek to supplement state reporting. court decision requires, states should provide voters an opportunity to 'cure' their Recommendation 2: States should ballots by providing the missing information. develop or revise election emergency For ballots with requisite envelope plans well in advance of the elections so information, states should begin processing that they are robustly able to handle those ballots before election day, opening foreseeable contingencies, including the envelopes, preparing the ballots to be new threat to the November 2020 scanned, and generally moving ballots elections posed by COVID-19. These through the process for everything short of guidelines should provide generous the final tabulation. opportunities for eligible voters to safely and securely cast ballots. To clarify the vote counting process and boost the confidence of skeptical voters, states should institute a two-part process. As the rapid spread of COVID-19 demonstrates, elections may be disrupted by 1. Prior to the election, states should a wide range of unexpected calamities publish clear, plain language ranging from natural disasters, such as explanations of their counting process hurricanes and earthquakes, to public health and indicate why votes may not all be crises and terrorist attacks. In the short run, counted on election night and how the election officials must be aware of the full daily post-election process for counting extent of their legal discretion and authority and reporting ballots takes place. In lieu under the laws that ordinarily govern of or in addition to this state process, elections to mitigate such crises’ impact. outside groups might also publish such They should also develop contingency plans guidance before the election, especially to exercise extraordinary authority under in competitive states likely to see their jurisdiction’s election emergency election reporting delays. statutes, if any, as well as more general 2. Immediately following the election, states state-of-emergency laws. Over the longer should publish regular updates on the term, and ideally before the November 2020 counting process, the likely remaining elections, states should adopt election outstanding ballots, and a detailed, at emergency statutes that grant the least daily, accounting of the sources of appropriate political or election officials the newly counted ballots. power necessary to respond to election emergencies in order to preserve voting State election officials should publish what rights; ensure fair and accurate election they know about outstanding ballots. This outcomes; and deter and prevent fraud, could include states being clear about the difference between percentage of precincts 6 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis mistake, and other irregularities, even in unexpected and difficult circumstances. 27 Specifically, with regard to the threat posed by COVID-19, election officials in most jurisdictions can generally take steps to safely facilitate voting in a variety of ways. To the extent they have discretion, they can increase the number of polling places and decline to consolidate polling places. By minimizing the number of voters assigned to each location, election officials can reduce crowd size, shorten lines, and promote social (Flickr/User ep_jhu) distancing. For jurisdictions that conduct elections at larger, countywide vote centers, For jurisdictions that have excuse-based they can consider having a separate area in absentee voting, either the chief election each location for self-identified older, officer or attorney general should make an vulnerable, or immune-compromised voters, announcement as early as possible that the helping to reduce their risk of exposure. risks associated with COVID-19 categorically constitute “cause” for casting an absentee States should follow guidance from the ballot. Appropriate state officials should act Centers for Disease Control and Prevention as early in the process as possible to (CDC) about conducting safe public activities. minimize any confusion or uncertainty about If necessary, in November 2020, voters people’s eligibility to cast absentee ballots. should be required to line up outside the And, perhaps most importantly, election polling place, rather than indoors, and poll officials should ensure that they have workers should use tape to mark off six-foot sufficient resources to conduct an election intervals so that voters do not congregate based primarily on absentee ballots. They too closely together while waiting. Each should ensure they have sufficient paper polling place should be well-stocked with ballots to mail to each voter in the masks and gloves for poll workers, as well as jurisdiction, if necessary, along with the hand sanitizer for voters to use upon equipment necessary to process and tabulate entering and exiting. Poll workers should such an unusually large number of votes. remain six feet away from voters and (See Recommendation 12.) minimize direct physical contact. And all equipment—including touchscreens, pens, Election officials should also expand and voting booths—should be disinfected alternate means of voting to the full extent following CDC guidelines. permitted by state law and consistent with sound and secure election administration Regardless of the steps taken to reduce the practices. Many jurisdictions allow election risks of in-person voting, however, election officials to bring ballots to senior citizens or officials should also take steps to expand patients confined to hospitals, assisted living alternate avenues for voting. Absentee voting facilities, or other such places. In some other will play an even greater role in the 2020 places, curbside voting is available to certain election than it has in previous years. voters. Again, either the chief election official Election officials should proactively make it or the attorney general should issue a formal easier for voters to obtain absentee ballots. interpretation of these provisions as early as AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 7 Fair Elections During a Crisis possible in the election cycle to construe more broadly allow the governor to suspend them as broadly as reasonably possible. state statutes or deadlines during a declared States should expand the number of different emergency. Broadly speaking, a state may venues available to voters to cast ballots, respond to an election emergency in three and election officials need as much advance ways. Election modifications allow election notice as possible to ensure they are able to officials to change rules, suspend fully implement these alternatives. Even now, requirements, or extend deadlines as election officials should consider reaching necessary to respond to an emergency. out to facilities that squarely fall within such Election postponements allow election statutes to discuss ways of providing their officials to reschedule an election that is residents with an opportunity to vote while disrupted by a major unexpected catastrophe maintaining medically safe practices and (such as the 9/11 attacks) for another day, procedures. typically within another week or two. Election cancellations occur when widespread As states plan for November, now is the time evacuations or devastation make it for election administrators to procure impossible to conduct the election, and an supplies and arrange contracts for printing entirely new election must be held several and other election equipment and support. weeks or months later. Supply chains may continue to be disrupted because of the pandemic, and planning that Given the unique context and both waits until the fall may well be too late. constitutional and federal statutory constraints that apply to presidential Recommendation 3: States should elections, governors and election officials modify election procedures as necessary should contemplate only election to deal with the rise of COVID-19. Having modifications as a response to COVID-19. In a diversity of avenues for voting—in- exercising power under election emergency person, absentee, curbside, on-site at laws or more general state-of-emergency hospitals and other such facilities— laws to modify or suspend certain enhances the stability of the system, requirements, state officials must balance maximizing the likelihood that elections two equally important considerations. On the may continue despite whatever one hand, they must ensure voters are given unexpected threat emerges. Online return adequate opportunity to vote despite the of ballots should not be contemplated for unique challenges posed by COVID-19. On the November 2020 elections. States the other hand, they must ensure they do should take steps to protect the not suspend important checks on the transmission and accurate counting of the integrity of the process that assure voters expected increase in the number of that their votes will not be improperly absentee ballots. diluted or nullified by votes from ineligible people, illegally cast votes, or even fraudulent votes. This is especially true for an election in which a disproportionately Some jurisdictions have election emergency higher percentage of absentee votes will be laws that grant election officials additional cast since, historically, when election fraud powers in the context of certain disasters has occurred, it has more commonly involved that impact impending or ongoing elections. absentee ballots. 28 Even in jurisdictions that lack these emergency-specific statutes, many states 8 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Likewise, states should not allow the return Recommendation 4: The community of of completed absentee ballots to elected election law scholars should develop a officials via e-mail or other online means. non-partisan set of protocols for how best Most experts agree that online voting is not to resolve, consistent with rule-of-law and securable with any currently known constitutional principles, vote-counting technology.29 And given the ongoing threat of disputes that might render uncertain the foreign hackers seeking to manipulate outcome of the presidential election, election results, allowing online transmission including protocols for resolving of ballots creates too great a risk of interpretative ambiguities concerning the facilitating such intrusions. Rather than such Electoral Count Act insofar as it governs potentially problematic measures, election the role of Congress in receiving and officials and governors should instead counting Electoral College votes from the consider suspending limitations on eligibility states. to engage in curbside voting, notarization requirements for absentee ballots, and deadlines for requesting absentee ballots. Even before the arrival of the COVID-19 pandemic, election law scholars were The unavoidable possibility of election concerned about the elevated risk that the emergencies underscores a key structural 2020 presidential election would end up requirement for any robust electoral system: disputed. Political conditions—including the a diversity of methods for voting. Focusing aftermath of impeachment, the stability of primarily or exclusively on a single voter preferences in the contemporary era of mechanism for voting, such as vote-by-mail, hyperpolarization, and the likelihood that the exposes the electoral process to tremendous election would be closely contested—meant systemic risk. Another anthrax scare, a postal that small margins in pivotal states would be strike, widespread sickness of postal prone to disputation. Add to this workers, problems with the postal service’s developments in electoral practices— financial operations, or destruction of key including the risk that more votes would be postal facilities could cripple a jurisdiction’s counted, not on election night, but in the ability to conduct a mail-based election. ensuing process leading to certification of Having a diversity of avenues for voting—in- results—the consequence was a significantly person, absentee, curbside, on-site at increased probability that the reported result hospitals and other such facilities—enhances of the presidential election would be subject the stability of the system, maximizing the to litigation and related challenges, rather likelihood that elections may continue than acceptance in a conventional despite whatever unexpected threat emerges. concession speech. COVID-19 only exacerbates this problem, elevating even further the risk that the result of the presidential election will be disputed. Because many more ballots are likely to be cast by mail, and because mailed ballots are much more prone to disputation, basic math indicates that there is now an even greater chance that vote tallies will be contested. Any hope of settling the election in a way AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 9 Fair Elections During a Crisis that the losing candidate accepts a final partisan perspective, without any particular result requires clear rules for determining electoral dispute at stake in the moment. how any such vote-counting disputes must be resolved. Thus, there is a particular need for scholarly protocols for resolving disputed elections We recommend that election law scholars, to with a focus on the possible circumstances the extent possible, develop a non-partisan that could arise concerning opposite set of protocols on how potential vote- interpretations of the Electoral Count Act. counting disputes should be resolved. (This These circumstances could be envisioned work should be done in coordination with even before the COVID-19 crisis occurred. But the bipartisan Election Crisis Commission they are even easier to imagine given the described in Recommendation 8.) These occurrence of this pandemic. For example, protocols should be developed in advance of because of the greater need to rely on the election itself, behind the proverbial “veil absentee ballots, and because of the greater of ignorance,” so that the non-partisan possibility of litigating over absentee ballots recommendations are based on general than conventional in-precinct votes, one can principles and not tailored to advantage any readily imagine a fight in Congress over the particular candidate or party. These protocols counting of absentee ballots from a state could build on the work of the American Law that is pivotal to determining the winner of Institute, which in its Principles of Law the Electoral College. project on Election Administration, addressed some of the issues that might be subject to No one is so naïve to think that a set of vote-counting disputes. 30 But additional scholarly protocols on how such protocols could extend the same type of interpretative ambiguities should be resolved work to new circumstances that have arisen would eliminate the risk of congressional since completion of that ALI project, contestation over these issues. Nonetheless, including new issues that might arise a strong scholarly consensus adopted in specifically because of the effect of COVID-19 advance of election day on the better way to on the voting process this fall. settle these ambiguities can help reduce the extent to which such congressional Moreover, scholarship both old and new has contestation could spin out of control, recognized the inadequacies of the Electoral leading to the ultimate crisis of a still- Count Act 31 in the event that a disputed disputed election at noon on January 20, presidential election reaches the joint when the winner is supposed to be session of Congress required by the Twelfth inaugurated for the beginning of the new Amendment for the receiving and counting of presidential term. Anything that would Electoral College votes from the states. 32 The reduce the chances of that happening, even statute is a morass of ambiguity, which is the if only marginally so, would be exact opposite of what is required in this advantageous. Hence, we call for non- situation. While it would be desirable for partisan scholarly protocols to give particular Congress to amend the statute to eliminate attention to these Electoral Count Act those ambiguities, on the assumption that ambiguities. 33 Congress will fail to do that before the November 2020 election, the next best thing would be a scholarly consensus on how such ambiguities should be resolved from a non- 10 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Media Changes for 2020 A citizen’s guide to breaking news for election processes/returns Recommendation 5: Media organizations The WNYC show On the Media has created should engage in a public information an image (reproduced in Figure 1) called “The effort to provide voters with accurate Breaking News Consumer’s Handbook” that information about the process by which is frequently shared in the aftermath of election officials count votes and events such as school shootings. The image determine the election winners. The reminds news consumers about the error- public education effort should include a prone nature of breaking news coverage and simple citizen’s guide to election coverage recommends some simple rules people can and a one-stop shop for online follow to avoid falling victim to—and information about election processes and spreading—misinformation. This approach outcomes. This information should be was so effective that the show produced translated into as many languages as related versions about issues ranging from possible. “fake news” to infectious diseases to the Mueller investigation. The legitimacy of the November 2020 elections depends on public understanding of and confidence in the electoral process. We therefore recommend (1) additional public education to provide information about the process by which votes are counted and the election winner is determined, and (2) journalistic training and coverage planning to help reporters and media outlets appropriately set expectations before the election and to accurately report on events as they develop. These efforts are likely to provide the strongest defense against misinformation about the electoral process or false allegations of widespread voter fraud, which media outlets should of course also seek to avoid amplifying. We propose two resources for promoting Figure 1 34 public understanding of elections and greater resistance to possible misinformation about We recommend that the show or others election fraud: a summary of key facts about produce a new version about the coverage of election processes and returns that is election results. A new version could be optimized for sharing on social media, and widely shared in the period before the an authoritative website that aggregates key election, reaching key influencers and media facts about how elections work that could be figures. It could then be employed up to and promoted by technology platform companies during the vote count itself, aiding citizens, as a resource for voters. journalists, and public figures who want to provide more accurate information. A AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 11 Fair Elections During a Crisis partnership with Univision or Telemundo to when people search for information about make a Spanish version would also be highly COVID-19. We recommend that such a site desirable. It should be translated into as not replicate existing state-specific sites; many languages as possible for voters. instead, it should provide accurate information in an accessible FAQ style, while sending people to Secretary of State websites for specific information about elections in their state. The site, which could be created by the Bipartisan Policy Center in conjunction with the National Association of Secretaries of State, the U.S. Election Assistance Commission, or the National Council of State Legislatures, should also include information about how to stay safe while voting either by voting by mail or maintaining social distancing during in- person voting. (Flickr/User Scott Beale/Laughing Squid) Recommendation 6: Nonprofit A one-stop shop for online information organizations should facilitate journalistic about election processes and outcomes training and coverage planning to help reporters and media outlets appropriately The decentralized American election process set expectations about the timing of is difficult to understand, particularly given election results and election procedures the variation in state election processes and before the election and to accurately the complications introduced by widespread report on events as they develop. It is vote-by-mail and absentee voting. Americans especially important for the media to can of course visit the website of their convey to the public the idea that, given Secretary of State to learn more about voting an expected increase in absentee ballot in their state, but these sites often fail to voting in the November 2020 elections, provide clearly accessible explanations of the delays in election reporting are to be election process and frequently rely on expected, not evidence of fraud, and that legalistic language. There is no authoritative the 2020 presidential election may be website where people can go to learn about “too early to call” until days after election how elections are administered in this day. country, which may help to create an information vacuum in which misinformation can thrive. Direct public education is important, but the media remain the most important source of To address this gap, we recommend the political news for most Americans. We creation of a bipartisan election therefore recommend providing resources administration site modeled on the COVID-19 and training to aid journalists in preparing site of the CDC. 35 The goal of this site would for covering election results in a responsible be to create a resource that platforms could and accurate manner. In addition, we offer a direct citizens to in the same way as they set of best practices for journalists to follow refer people to the CDC coronavirus website 12 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis in covering election results during the vote are tallied. We offer the following best count. practices as recommendations to the media: Preparing for election results coverage • Prepare to report the results as “too early to call;” emphasize the need for a We recommend that the Bipartisan Policy careful count rather than reporting that Center, the MIT Election Lab, or other the timeline reflects an institutional authoritative expert sources partner with failure journalist training experts and funders, such • Explain more votes will be counted after as the Poynter Institute, American Press all precincts report due to mail ballots Institute, or the Knight Foundation, to • Report estimates of expected votes conduct trainings or convene conferences to outstanding or other information besides help newsrooms prepare for their election percentage of precincts reported (but night coverage. These meetings should cover beware of changes in those estimates, the following topics: which may confuse people and create fears of fraud) • The expected timeline for counts and why • Explain why shifts in vote margins are the result is likely to remain unresolved routine as counts of mail ballots are on election night, especially as vote-by- conducted and not indicative of fraud mail becomes more widely used • Avoid putting isolated events and • Why shifts in the vote margin over time unverified claims into live coverage are expected and not indicative of fraud (especially TV) but be prepared to • The need to avoid amplifying unverified debunk viral misinformation if it reaches anecdotes that further misinformation large audiences or is amplified by about the electoral process or results national politicians or political figures • Why the media should avoid forecast • Forecasts and exit poll projections are probabilities and report vote share frequently incorrect; avoid emphasizing estimates instead (particularly at the them for fear of affecting turnout or state level) causing unfounded suspicions of fraud if they miss the mark We also recommend that the Bipartisan Policy Center compile a vetted source list • Have election procedure experts on call that consists of a bipartisan set of former to help inform reporters and editors election administrators and secretaries of Journalists should report that vote counts state plus academic experts whom continuing beyond election day are normal newsrooms can consult with about the and that errors and delays are not process. necessarily indicators of nefarious intent. Opportunistic elites will seek to take Best practices for election night coverage advantage of this confusion, particularly if it can harm the standing of the side that is Irresponsible media coverage risks likely to win. Irresponsible coverage that endangering the perceived legitimacy of the amplifies such claims runs the risk of election. News outlets need to prepare the encouraging more fundamental challenges to public to understand a process that is accepting the outcome of the election itself, unlikely to provide a quick resolution and a compact that is at the very heart of whose results are likely to change as votes democracy. AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 13 Fair Elections During a Crisis Politics and Norms Changes for 2020 Recommendation 8: Nonprofit organizations and foundations should establish an independent bipartisan Recommendation 7: COVID-19 is going to Election Crisis Commission well before the increase the costs of election as more election to affirm a set of core principles voters, when they can, will choose to that should govern elections and warn vote-by-mail and as safety precautions against the erosion of core democratic increase the costs of in-person voting. norms. The Commission should encourage Congress and states should provide candidates and other political actors to adequate funding to deal with the embrace those principles, and it should increased election costs that will be weigh in post-election, if necessary, on associated with COVID-19. resolution of election disputes consistent with those principles. While specific election administration responses to COVID-19 will vary across the Nonprofit organizations and foundations country, the need for financial resources to should establish an Independent Election fund these responses is shared among all Crisis Commission before the 2020 general election officials. The Bipartisan Policy Center election to clarify and reaffirm the estimates that election officials will require at commitment to basic electoral norms and to least $1.5 billion and the Brennan Center has think through some of the problems that estimated that election-related COVID-19 could arise as a consequence of emergency costs will exceed $2 billion. 36 The most contingencies of various sorts. The recent COVID-19 stimulus package, signed by Commission should have national and state President Trump on March 27, includes only bipartisan representation. Initially, it should $400 million in elections funding. 37 This is have a wide diversity of notable public simply not enough, and it is likely very figures and experts from diverse unreasonable to expect counties or states to backgrounds, including former officials who pick up the shortfall as they are likely facing have been elected to statewide or national significant dips in revenue. Congress should office. It should also include as members or provide more elections funding or risk advisors subject matter experts from a significant meltdowns on the road to variety of fields, including election November 2020. There is bipartisan administration, public health, civil rights, and agreement from election officials across the democratic norms. The Commission should country that more funding is needed, now. also include members from traditionally underrepresented groups, including racial, Specific proposals, recommendations, and ethnic, and language minorities, and persons considerations in response to COVID-19 have of differing abilities. been published by many. The materials released by the Bipartisan Policy Center, 38 Before the election, the Commission would the Brennan Center for Justice, 39 the National come together to affirm a set of core Task Force on Election Crises, 40 and Nate principles that should govern elections and Persily and Charles Stewart, 41 merit warn against the erosion of core democratic immediate attention by policy makers, norms. These norms include the idea that all election officials, and other interested parties candidates, parties, and political actors as we barrel forward to the general election should accept the results of elections that in the middle of a pandemic. 14 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis comply with principles of fundamental Recommendation 9: Election officials, fairness and to use legal means to resolve government leaders, and others should election disputes. It also includes the embrace the democratic principle that all principle set forth in the next eligible voters, and only eligible voters, recommendation, that all eligible voters, but should be able to register and vote in a only eligible voters, should be able to fair election with accurate vote-counting. register and vote in a fair election with Losers of fair elections should quickly accurate vote-counting. accept election results once they are final. Elections, even those conducted during a After the Commission adopts its set of crisis or emergency such as COVID-19, principles, it should urge voters and groups, should be resolved consistent with fair such as the National Association of election principles, recognizing and Secretaries of State, to get commitments resolving disputes in good faith. from politicians, other political actors, and election officials to pledge to adhere to these principles in the upcoming election for the Our core democratic commitment is to a sake of preserving system legitimacy and system that accurately reveals the will of the stability. people in all stages of voting and representation. 42 This can only happen if the The Commission should remain available electoral system fosters conditions and rules post-election in the event there are disputes that do the following: over 2020 election results. In a post-election 1. They enable voters to make informed environment, the Commission should choices (e.g. freedom of speech, association, consider weighing in, as appropriate, on the and the press); conduct of the campaigns and other political 2. They encourage full and inclusive actors in terms of the democratic norms that participation; and the Commission articulated at the first stage 3. They secure the process of casting and of its work. counting ballots from fraud and error. The initial Commission work should be Although laws govern the conduct of funded by an array of foundations, and democratic elections, they are also shaped efforts after the election might be directed by a set of informal norms. 43 We should into needed legislation to fill in gaps and strive for a system that upholds democratic problems that cannot be handled by principles that are embodied in both law and voluntary efforts alone. norms, one in which all eligible voters, and only eligible voters, can easily cast a vote that can be fairly and accurately counted. Striking a reasonable balance between competing values of full participation and fraud prevention is a necessary and critical goal, one that must be evidence-based, resolved in good faith, and favoring no party over another. There are increasing signs of erosion of these norms. A winner-take-all mentality in a time AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 15 Fair Elections During a Crisis of high political polarization contributes to enshrined in the Voting Rights Act and the claims of stolen and rigged elections. Elected Constitution’s Fourteenth and Fifteenth officials, political leaders, and others should Amendments which ban the targeting of embrace basic democratic principles about voters based on race or ethnicity in an effort fair election contestation, and should to suppress or dilute their vote. continue to ensure the peaceful transition of power and acceptance of election results The commitment to equality in voting when on the losing end of a hard-fought, but extends to efforts to target individuals or fair, election. 44 Once fair election decisions communities for the purpose of suppressing are final, losers should concede rather than or diluting their vote through the spread of raise unsubstantiated claims of fraud or voting misinformation. In particular, there is incompetence. an increasing danger that political or foreign actors will game political participation for The ongoing COVID-19 crisis has already tactical advantage through the spread of disrupted the 2020 primary elections. misinformation about when, where, and how Upholding the norms of ballot access for all to vote, as evidenced by the targeting of eligible voters, while respecting election Black voters with this kind of information in integrity and public health imperatives, will the 2016 and 2018 elections. 45 be especially crucial if these challenges persist through November. Much of this suppressive activity in the 2016 and 2018 elections occurred via social media. Recommendation 10: Leaders in social Social media companies can and must strike media, election officials, government a balance between providing for robust leaders, and others should promote the political debate and equal protection norms. equal protection voting norm, enshrined We recommend that social media platforms in the Voting Rights Act and the monitor especially closely, and then disclose Fourteenth and Fifteenth Amendments, and filter, to the extent they have a realistic which bans targeting voters based on capacity to do so, misinformation or other race or ethnicity in an effort to suppress discriminatory efforts to generate or spread or dilute their vote. Social media factually inaccurate information about voting, companies have a unique responsibility to such as false assertions about the time or prevent the use of their platforms for date of elections, eligibility to vote, the efforts that would suppress votes through closing or moving of polling places in the the spread of misinformation about wake of COVID-19, and the presence of voting. immigration or law enforcement officials at polling places. We recognize the platforms will have the most capacity to effectively One of the democratic principles set forth in intervene against voting-related Recommendation 9 recognizes the right of misinformation that can be easily identified all eligible voters to cast a ballot in a fair as false in real time such as the time or date election. Included within this idea is a of elections. principle of non-discrimination: all eligible voters includes voters from across the political spectrum and of every racial, ethnic, and religious group in the United States. These equal protection principles are 16 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Tech Changes for 2020 moves them further down the path to eventual implementation. Recommendation 11: To the extent Paper ballots are the best protection against possible, states should use paper ballots hacking, mistakes, or bugs in the voting or electronic machinery that produces a machines and computers that aggregate voter-verifiable record of the voter’s election results. But paper ballots only choices, in the November 2020 elections protect a democratic election if there is a to ensure the integrity of the outcome. systematic way to examine them, and States should audit election results, and systematic protection of the ballot boxes work towards incorporating risk-limiting until they can be examined. audits. The most effective and efficient way to examine the paper ballots or records is an Most voters will rely on some form of paper RLA: that is, inspection of just enough ballot in 2020 recording their votes, either randomly chosen paper ballots to make sure voting directly on paper or on electronic that what the voters marked on them is machines that produce a paper with the consistent with the election outcome claimed voter’s choice on it. Paper provides an by the voting system. Not every “random independent way to verify that the audit” is an RLA. The term risk limit means a announced results of an election agree with guaranteed level of assurance that the the choices made by voters. For all elections, election outcome will be correct (that is, they provide the evidence that can be used correspond to what is on the paper ballots). for post-election audits. In extreme cases, Many states have some sort of random audit, they provide the independent evidence but many older state statutes are ineffective needed to resolve close elections through (i.e., provide no guaranteed level of recounts or contests. In all instances, assurance about the outcome of the election) maintaining control over the chain of custody or inefficient (i.e., recount far more ballots of ballots is critical not only to ensure that than needed). There are scientific methods to the initial count is accurate, but to ensure conduct RLAs, and several states have that any disputes that arise are resolved experience with them: a few states will be based on the votes cast. using RLAs in November 2020, and several more states are well underway to pilot RLAs. To ensure that election results actually agree with the choices made by voters, it is As long as a jurisdiction relies on paper necessary to audit the ballots cast by ballots, then election officials can conduct voters. 46 Although the vast majority of states RLAs. As of March 2020, 42 states use paper now require a random audit after an election, ballots (of one form or another) as the very few require that this be done using a primary polling location equipment more powerful post-election auditing statewide. 48 Nonetheless, most states do not method, the Risk-Limiting Audit (RLA). 47 RLAs yet use RLAs or any other systematic method require paper ballots or records, and a of recounts or random audits that can degree of chain-of-custody over ballots that guarantee a certain level of assurance that few states and local jurisdictions currently the reported outcome is correct (consistent require. Although most states are a long way with what is actually marked on the paper from implementing RLAs, and few will do so ballots). in 2020, all states should take action that AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 17 Fair Elections During a Crisis Most states should conduct pilot RLAs (for election officials evoke questions in the practice and training) before ramping up to minds of voters about the integrity of full-scale statewide RLAs. RLAs must be elections. If effective means of designed for a state’s own election communicating the importance of RLAs to procedures and formats, require training and the public cannot be developed, then their practice for election administrators, and promise as a confidence-building activity will require logistical preparation. All states be unfulfilled. should do pilot RLAs, and, even without RLAs, there are still steps to take in 2020 to make better use of the protections that their paper ballots afford. For example, the several states that do a fixed-percentage-of-precincts audit are still protecting themselves better than no audit at all. The steps that a state might take in 2020 toward eventually implementing RLAs would not just help with this long-term goal, but could bring immediate benefits as well. For instance, consider recounts. The re- examination of paper ballots is usually the centerpiece of a recount. Recounts are likely to go more smoothly if chain-of-custody procedures and protections are in place to demonstrate to the public (and the (Flickr/User steevithak) candidates) that the ballots have been in continuous official custody from the time the We also recommend that election officials polls closed to the time the recount started. conduct RLAs and/or RLA pilots in a Election officials can review now whether transparent manner. Offering access to their chain-of-custody procedures and members of the public or the press so that protections could provide that they can observe the post-election demonstration. If this review indicates that procedures that provide confirmation of the procedural improvements are needed, or if accuracy of the outcome will likely increase poll worker training needs to be improved, voter confidence. Where possible, election then these improvements should be made officials should live-stream RLAs and other before November. 49 post-election audits, and should publish the software and methods used in those audits. In addition to moving toward the implementation of RLAs through the conduct Finally, we recognize that in light of the of pilots and improvement of the logistics of COVID-19 health crisis, it is likely that the handling paper ballots, further research is number of ballots cast by mail in the 2020 needed into how to communicate to the presidential election will be historically high. public about them. Although there is This deluge of paper ballots in many states widespread agreement that RLAs are an will require election officials to rethink how integral component of a resilient election mail ballots are managed throughout the system, some initial research has indicated chain of voting, from mailing a ballot to a that the simple use of the term “audits” by voter to receiving it back, verifying it, and 18 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis tabulating it. As procedures governing how • Where BMDs or direct-recording mail ballots are rethought in many states, electronic machines (DREs) are used, there is an opportunity to institute provide enough preprinted emergency procedures that will increase security and ballots that can be hand-marked for 2-3 facilitate RLAs in future elections. hours of peak voting in case the BMDs or DREs fail. The same applies where ballot- Recommendation 12: Election on-demand printers are used for hand- administrators should create a resilient marked optical-scan ballots. (A significant election infrastructure to deal with the advantage of preprinted hand-marked unexpected, including complications paper ballots is that they are their own related to COVID-19. Resiliency measures emergency ballots, and no other include having enough ballots on hand to emergency ballots need be printed.) accommodate high voter turnout, • Where vote centers handle a large redundant election machinery, and paper number of ballot styles, and where the copies of e-pollbook voter registration “number of registered voters” might records. mean as many of the county’s voters that choose to use this vote center, it is not such a simple matter to supply preprinted emergency ballots. But a As election administrators well know, supply adequate for 3 hours of voting is elections should be made resilient against still a good idea, even though the the unexpected: greater turnout than logistics may be difficult. anticipated, equipment failures, paper jams, • Where e-pollbooks are used, provide concerted hacking that causes e-pollbooks to paper-backup pollbooks at the polling fail, last-minute voter-registration database place to recover in case of e-pollbook hacking that drops voters from the e- failure, e-pollbook hacking, or power pollbooks, power failures, and so on. Many failure. This is a better solution, where of these problems can be avoided by proper available, than the use of provisional preparation at polling places. We recommend ballots, because it guarantees to the the following procedures to increase voter legitimately registered at this resilience in the 2020 elections: location that their vote will be counted. Where multiple simultaneous vote • Where preprinted hand-marked paper centers are used, that critically rely on ballots are used, provide enough paper online connection of linked e-pollbooks, ballots for 100% of registered voters, as there is no clear solution; the only this will be a high-turnout election. solution may be the use of provisional Where same-day registration is permitted, ballots. consider supplying enough for 110%. • Where polling locations are remote or • Where precinct-count optical scan (PCOS) may be otherwise challenging to access, machines are used, the standard fallback have a plan for the emergency printing procedure when the machines fail or jam and delivery of additional paper ballots is to allow voters to cast their ballots within 3 hours to prevent running out of into a ballot box for later scanning. ballots after the exhaustion of the 3-hour Election officials should be prepared to supply of emergency paper ballots. use this fallback sooner rather than later, • All states should implement a cyber so that long lines do not develop at the navigator program that provides election polling place. security and cybersecurity professional AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 19 Fair Elections During a Crisis services to local election officials. These verified status on social media platforms. programs include cyber navigators with Social media authentication signals trust and responsibility for geographic zones who credibility, which is critical when election work across the state with local election officials need to distribute important officials to train relevant personnel, and information about emergencies or other lead risk assessments and evaluations, timely election administration information among other things. They fill a role akin that may impact voters. in many ways to that of a chief information security officer for counties. Similarly, election officials should obtain Their assessment and evaluation efforts “verified” status for their social media will help officials identify vulnerabilities accounts. Official verification marks signal to and determine where additional the public that the account is an authentic, resources may be needed to shore up official source of information. Any election cyber defenses. The program’s other office seeking to verify their social media principal components are infrastructure, should take specific steps to prepare their improvement, and information sharing. accounts. For Facebook, the account should be specific to the election office and include All these situations can be handled by local a cover photo. 50 On top of these action in the polling place. Much more severe requirements, Twitter asks that accounts also regional emergencies require a more drastic add two-factor authentication and include an response, as discussed elsewhere (see the associated government email, a description Law section of this report). of the purpose of the office, and a link to an official website. 51 Recommendation 13: Election officials should obtain a .gov domain for an Collaboration between the National authenticated internet presence. They Association of Secretaries of State (NASS), should secure “verified” status for their National Association of State Election official accounts on social media Directors (NASED), Facebook, and Twitter platforms. helps simplify the verification process on social media pages for election offices. Once the prerequisites are in place, election offices Election officials should obtain a .gov can simply contact their Chief Election domain. The .gov domain is a top-level Official, who will work with NASS/NASED to domain name that was established to easily submit their account for verification to the identify official government accounts. Since social media companies. .gov is only available to bona fide U.S.-based government organizations, using it signals Recommendation 14: State election trust and credibility. In addition, the officials should monitor and audit state Cybersecurity & Infrastructure Security voter registration databases. Agency (CISA) and the National Institute of Standards and Technology (NIST) provide free monitoring of namespace issued to .gov Voter registration database security is a key users. component of secure and smooth elections. This data is used to verify voter eligibility at Use of a .gov domain also makes it easier for the polls on election day (or at vote centers election officials to obtain authentication or prior to election day). Voter registration 20 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis databases are also used to communicate with voters in a given jurisdiction, such as to notify them where their in-person precinct is located or to mail them an application for an absentee ballot. With the likelihood that some states that are not typically “vote-by-mail” or “vote-at- home” states may mail ballots to all voters in 2020—or at least an absentee ballot application—because of the COVID-19 crisis, the integrity of voter registration databases will be even more important for the coming elections than it has been in the past. The critical nature of voter registration databases in the 2020 elections raises the importance of constantly monitoring these databases for accuracy and to detect changes to the databases—due to mistakes or malicious activity—that could interfere with the ability of a voter to cast a ballot. Just as ballots can be audited, so, too, can voter registration databases. Currently, two major examples of such auditing and monitoring exist. The first is VoteShield, an online Web application “which uses basic statistics, machine learning and data visualization to analyze changes in local voter databases and flag unusual activity.” 52 The second is illustrated through a collaboration between researchers at Caltech and the election director in Orange County, California, in which the Caltech team developed a series of techniques to monitor changes in the Orange County voter file and produce a series of reports back to the county based on implementing those techniques. 53 AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 21 Fair Elections During a Crisis Conclusion The 2020 elections got off to an inauspicious start with the botched Iowa caucuses in February 2020, reminding those in the United States of the many stresses on the decentralized American electoral system. The shock of COVID-19 only adds to concerns about the fairness and integrity of the November 2020 elections and the public’s perception of the elections as legitimate. Rather than despair over American’s current low opinion of the election system, members of the Ad Hoc Committee for 2020 Election Fairness and Legitimacy have offered concrete solutions to minimize the chances of an election meltdown in November. The stresses on the American electoral system are multifaceted, demanding pinpointed solutions in law, media, tech, and politics. Enacting each of the specific proposals put forth by this Committee would go a long way toward helping ensure a fair political process for 2020, and one seen by many more American voters as legitimate. It is the responsibility of each of us to do our part to help ensure the integrity of the 2020 elections. Our democracy depends on it. 22 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Endnotes 1 Richard H. Pildes, Why the Center Does Not Hold: 12 Nick Corasaniti, Reid J. Epstein & Lisa Lerer, The Causes of Hyperpolarized Democracy in America, Wisconsin Is Set to Vote on Tuesday After Court 99 CAL. L. REV. 273 (2011), Overrules Governor’s Postponement, N.Y. TIMES (Apr. https://papers.ssrn.com/sol3/papers.cfm?abstract_id= 6, 2020), 1646989 [https://perma.cc/UMW3-BHAE]. https://www.nytimes.com/2020/04/06/us/politics/wisco 2 Ciara Torres-Spelliscy, Branding Partisanship, in nsin-primary-election-postponed-coronavirus.html POLITICAL BRANDS (2019). [https://perma.cc/G6DN-E6N8]. 3 Michael W. Sances & Charles Stewart III, Partisanship 13 Coronavirus Upends Primary Elections in Florida, and Confidence in the Vote Count: Evidence from Illinois, and Arizona; Vote Postponed in Ohio, L.A. U.S. National Elections Since 2000 , 40 ELECTORAL TIMES (Mar. 17, 2020), STUD. 176 (2015), https://www.latimes.com/politics/story/2020-03- https://doi.org/10.1016/j.electstud.2015.08.004 17/coronavirus-primary-election-confusion-florida- [https://perma.cc/5BYM-VM25]. ohio-polling [https://perma.cc/JU86-U2RA]; see also 4 RICHARD L. HASEN, ELECTION MELTDOWN: DIRTY TRICKS, Nick Corasaniti & Stephanie Saul, 16 States Have Postponed Their Primaries Because of Coronavirus. DISTRUST, AND THE THREAT TO AMERICAN DEMOCRACY 56 Here’s a List., N.Y. TIMES (Apr. 9, 2020), (2020). 5 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-16-630, ISSUES https://www.nytimes.com/article/2020-campaign- primary-calendar-coronavirus.html RELATED TO REGISTERING VOTERS AND ADMINISTERING [https://perma.cc/84WR-97Q8]. ELECTIONS, at 2 (2016), 14 BARRY C. BURDEN & BRIAN J. GAINES, Administration of https://www.gao.gov/assets/680/678131.pdf Absentee Ballot Programs, in CALTECH-MIT VOTING [https://perma.cc/JEK7-JDV2]. 6 Reid J. Epstein, Sydney Ember, Trip Gabriel, & Mike TECHNOLOGY PROJECT, VTP # 112 (July 15, 2013), https://dspace.mit.edu/bitstream/handle/1721.1/97657/ Baker, How the Iowa Caucuses Became an Epic WP_112.pdf?sequence=1&isAllowed=y Fiasco for Democrats, N.Y. TIMES (Feb. 11, 2020), [https://perma.cc/PGJ8-5BT3]. https://www.nytimes.com/2020/02/09/us/politics/iowa- 15 Mark Niesse & Tyler Estep, High Rate of Absentee democratic-caucuses.html [https://perma.cc/PW9A- Ballots Thrown Out in Gwinett, ATL. J. CONST. (Oct. 15, 5AZY]. 7 Richard L. Hasen, Cheap Speech and What It Has 2018), https://www.ajc.com/news/state--regional-govt- -politics/high-rate-absentee-ballots-thrown-out- Done (To American Democracy), 16 FIRST AMEND. L. gwinnett/azdOsCxX2X6mT8PTrgZlJI/ REV. 200 (2018), [https://perma.cc/GRM4-A59N]. https://papers.ssrn.com/sol3/papers.cfm?abstract_id= 16 Enrico Cantoni & Vincent Pons, Strict ID Laws Don’t 3017598 [https://perma.cc/2N89-SU2V]. 8 See OFFICE OF THE DIR. OF NAT’L INTELLIGENCE, BACKGROUND Stop Voters: Evidence from a U.S. Nationwide Panel, TO “ASSESSING RUSSIAN ACTIVITIES AND INTENTIONS IN RECENT 2008–2018, NAT’L BUREAU OF ECON. RES., Working Paper US ELECTIONS”: THE ANALYTIC PROCESS AND CYBER INCIDENT No. 25522, (Feb. 2019), ATTRIBUTION 3–4 (Jan. 6, 2017), https://www.nber.org/papers/w25522 https://www.dni.gov/files/documents/ICA_2017_01.pdf [https://perma.cc/69QP-B83A] (“[S]trict ID [https://perma.cc/P4ZF-5H7H]. requirements have no effect on fraud – actual or 9 Brett Neely, NPR Poll: Majority of Americans Believe perceived.”). Trump Encourages Election Interference, NPR (Jan. 17 Pam Fessler, Senate Coronavirus Bill Includes $400 21, 2020), Million to Protect Elections, NPR (Mar. 25, 2020), https://www.npr.org/2020/01/21/797101409/npr-poll- https://www.npr.org/sections/coronavirus-live- majority-of-americans-believe-trump-encourages- updates/2020/03/25/821521543/senate-coronavirus- election- bill-includes-400-million-to-protect-elections interference?utm_medium=RSS&utm_campaign=stori [https://perma.cc/K44G-Y8HF]. esfromnpr [https://perma.cc/6M49-N6WJ]. 18 Lawrence Norden et al., Estimated Costs of Covid-19 10 RJ Reinhart, Faith in Elections in Relatively Short Election Resiliency Measures, BRENNAN CTR. FOR JUST. Supply in U.S., GALLUP (Feb. 13, 2020), (Mar. 19, 2020), https://www.brennancenter.org/our- https://news.gallup.com/poll/285608/faith-elections- work/research-reports/estimated-costs-covid-19- relatively-short-supply.aspx [https://perma.cc/RQB3- election-resiliency-measures [https://perma.cc/CR3G- E3SE]. XXFP] (up to $2 billion); Matthew Weil & Tim Harper, 11 Allan Smith, Ohio Primary Called Off at the Last The November Presidential Election Needs Minute Because of Health Emergency, NBC NEWS Emergency Federal Funding, BIPARTISAN POL’Y CTR. (Mar. 16, 2020), (Mar. 18, 2020), https://bipartisanpolicy.org/blog/the- https://www.nbcnews.com/politics/2020-election/ohio- november-presidential-election-needs-emergency- governor-calls-state-postpone-tuesday-s-primary- federal-funding/ [https://perma.cc/3UER-5H5G] ($1.5 elections-n1160816 [https://perma.cc/4JM5-FYW8]. billion). AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 23 Fair Elections During a Crisis 26 19 Elise Viebeck, Amy Gardner & Michael Scherer, For each update of election results (at least daily), Trump, GOP Challenge Efforts to Make Voting Easier state election officials should identify the source of Amid Coronavirus Pandemic, WASH. POST (Apr. 4, newly counted ballots, whether they were (a) Newly 2020), received mail ballots; (b) Favorably resolved https://www.washingtonpost.com/politics/trump-gop- provisional ballots; (c) Ballots found that were not challenge-efforts-to-make-voting-easier-amid- included in election night totals; (d) Resolution of coronavirus-pandemic/2020/04/04/61f889fe-75bb- counting errors or misreported results from election 11ea-87da-77a8136c1a6d_story.html night totals; and (e) Any other category that affects [https://perma.cc/ZZ9A-2ZFM]. 20 Craig Mauger, Secretary of State: Expect Michigan the post-election count. 27 Similarly, over the longer term, and ideally before Primary Results to Come Later, DETROIT NEWS (Mar. 5, 2020), November 2020, legislatures should adopt election https://www.detroitnews.com/story/news/politics/2020 emergency laws to ensure that officials have the /03/05/secretary-state-expect-michigan-primary- discretion they need to be able to adopt results-come-later/4963503002/ modifications, postponements, and even [https://perma.cc/4JZ9-SASV]; Jonathan Lai, Pa.’s cancellations (for non-presidential elections) as Election System Is on the Verge of the Largest necessary to respond to various types of Changes in Decades — in Time for the 2020 Election, emergencies. These statutes must carefully address PHILA. INQUIRER (Oct. 23, 2019), the particular circumstances under which the https://www.inquirer.com/politics/pennsylvania/pa- emergency powers may be triggered, the officials election-reform-deal-20191023.html [perma.cc/NER9- who are permitted to invoke them, the voters or L9YS]. geographic areas to which any such alterations will 21 Richard H. Pildes, Reducing One Source of a apply, and the types of responses that are Potential Election Meltdown, LAWFARE (Mar. 20, appropriate or categorically impermissible for various 2020), https://www.lawfareblog.com/reducing-one- types of threats. Addressing these issues in advance source-potential-election-meltdown enables election officials to engage in contingency [https://perma.cc/UG7T-R33V]; Nathaniel Persily & planning more effectively. It also gives states the Charles Stewart, III, Ten Recommendations to Ensure opportunity to ensure they are responding most a Healthy and Trustworthy 2020 Election, LAWFARE effectively to various types of threats, rather than (Mar. 19, 2020), https://www.lawfareblog.com/ten- having to develop plans in the midst of an recommendations-ensure-healthy-and-trustworthy- impending or ongoing crisis. And having such 2020-election [https://perma.cc/PX5U-XXEM]. measures in place reduces the likelihood that, as a 22 Edward B. Foley, Assessing the Validity of an default, emergencies will wind up being addressed Election’s Result: History, Theory, and Present by generalist courts, as a matter of constitutional Threats, (draft dated Feb. 9, 2020), law, in the context of rushed, often ex parte https://papers.ssrn.com/sol3/papers.cfm?abstract_id= proceedings with limited—and often partisan— 3535185 [https://perma.cc/44ZG-FHPS]. presentation of the pertinent facts, law, 23 The full conference schedule and list of participants administrative, and budgetary considerations. For an introduction to the literature on the law and is available at election emergencies, see Michael T. Morley, Election https://www.law.uci.edu/events/election-law/election- Emergencies: Voting in the Wake of Natural Disasters 2020/2020-conference-schedule-tentative.pdf and Terrorist Attacks, 67 EMORY L.J. 545 (2018); ERIC [https://perma.cc/E6CH-GPHY]. A video recording of A. FISCHER ET AL., CONG. RESEARCH SERV., RL 32654, each of the panels is available at: SAFEGUARDING FEDERAL ELECTIONS FROM POSSIBLE TERRORIST https://www.youtube.com/playlist?list=PLQw7KTnzkp ATTACK: ISSUES AND OPTIONS FOR CONGRESS (2004), Xe7d0JfmVNRlma4JdNz96Tk [https://perma.cc/C2L3- https://www.everycrsreport.com/files/20041027_RL326 4YNU]. 54_9299d912cd96f86e144ae4135ae01ca89541e0af.pd 24 For background on these deadlines, see Edward B. f [https://perma.cc/B4TP-6P3G]; John C. Fortier & Foley, Preparing for a Disputed Presidential Election: Norman J. Ornstein, If Terrorists Attacked Our An Exercise in Election Risk Assessment and Presidential Election, 3 ELECTION L.J. 597 (2004), Management, 51 LOY. U. CHI. L.J. 309 (2019), https://doi.org/10.1089/elj.2004.3.597 https://papers.ssrn.com/sol3/papers.cfm?abstract_id= [https://perma.cc/XQL8-MPQ4]; Jerry H. Goldfeder, 3446021 [https://perma.cc/EA4C-H6KH]. The “safe Could Terrorists Derail a Presidential Election?, 32 harbor” deadline refers to the period under federal FORDHAM URB. L.J. 523 (2005); Steven F. Huefner, law when Congress would have to accept the slate of Withstanding Election Day Terrorism, ELECTION L. @ presidential electors submitted by a state to MORITZ (July 19, 2004), Congress. http://moritzlaw.osu.edu/electionlaw/ebook/part7/elec 25 In extraordinary circumstances, such as when there is tions_pres02.html [https://perma.cc/3NSP-KYFR]. 28 Richard L. Hasen, Trump Is Wrong About the Dangers a dispute over the conduct and timing of the election itself, such as in the recent Wisconsin primary, a of Absentee Ballots, WASH. POST (Apr. 9, 2020), delay in reporting all results might be necessary to https://www.washingtonpost.com/opinions/2020/04/0 protect voting rights. 9/trump-is-wrong-about-dangers-absentee-ballots/ 24 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis 40 [https://perma.cc/5A8B-7MDH] (“According to the NAT’L TASK FORCE ON ELECTION CRISES, COVID-19 ELECTION well-constructed News21 database, absentee-ballot GUIDE (2020), ballot fraud made up 24.2 percent of all reported https://www.electiontaskforce.org/s/COVIDguidance prosecutions of election crimes between 2000 and [https://perma.cc/ME23-VT52]. 41 Persily & Stewart, supra note 21. 2012. But the total number of cases was just 491 — 42 Deane E. Neubauer, Some Conditions of Democracy, during a period in which literally billions of votes were cast. While certain pockets of the country have 61 AM. POL. SCI. REV. 1002 (1967). seen their share of absentee-ballot scandals, 43 Julia R. Azari & Jennifer K. Smith, Unwritten Rules: problems are extremely rare in the five states that Informal Institutions in Established Democracies, 10 rely primarily on vote-by-mail, including the heavily PERSPS. POL. 37 (2012). Republican state of Utah.”). 44 Thad E. Hall & Tova Wang, Show Me the ID: 29 NATIONAL ACADEMIES OF SCIENCES, ENGINEERING, AND International Norms and Fairness in Election Reform, MEDICINE, SECURING THE VOTE: PROTECTING AMERICAN 10 PUB. INTEGRITY 97 (2008). DEMOCRACY, 9 (2018), https://doi.org/10.17226/25120 45 Reports prepared for the Senate Intelligence [https://perma.cc/WKH9-8HAM] (“At the present time, Committee analyzing disinformation in the 2016 the Internet (or any network connected to general elections—including a report produced by the Internet) should not be used for the return of researchers at Oxford and another from Columbia-- marked ballots. Further, Internet voting should not reveal that racism in the United States is a be used in the future until and unless very robust substantial vulnerability to the integrity of its guarantees of security and verifiability are developed elections. See PHILIP N. HOWARD, ET AL., THE IRA, SOCIAL and in place, as no known technology guarantees MEDIA AND POLITICAL POLARIZATION IN THE UNITED STATES, the secrecy, security, and verifiability of a marked 2012-2018 (2019) ballot transmitted over the Internet.”). https://comprop.oii.ox.ac.uk/research/ira-political- 30 AMERICAN LAW INSTITUTE, ELECTION ADMINISTRATION: NON- polarization/ [https://perma.cc/B9QL-BX4Y]; RENEE DIRESTA, ET AL., NEW KNOWLEDGE, THE TACTICS & TROPES OF PRECINCT VOTING AND RESOLUTION OF BALLOT-COUNTING THE INTERNET RESEARCH AGENCY (2018), DISPUTES (2019), https://disinformationreport.blob.core.windows.net/di https://www.ali.org/news/articles/now-available- sinformation-report/NewKnowledge-Disinformation- principles-law-election-administration/ Report-Whitepaper.pdf [https://perma.cc/24KF-5TYQ]. [https://perma.cc/2EHJ-MYWQ]. It provides a pathway for manipulation of the 31 3 U.S.C. § 15 (2018). 32 John W. Burgess, The Law of the Electoral Count, 3 electorate by both foreign and domestic influences. For example, in the 2016 general elections and to a POL. SCI. Q. 633 (1888), more limited extent in the 2018 midterms, Russian https://www.jstor.org/stable/pdf/2139115.pdf interlopers disproportionately targeted African [https://perma.cc/49UL-XZ4K]; Foley, supra note 24. Americans for malevolent purposes to exacerbate 33 A May 4 conference at the Ohio State Moritz College racial tensions and negatively influence voter of Law will examine these issues. Details are engagement. See Scott Shane & Sheera Frenkel, available at: https://moritzlaw.osu.edu/election- Russian 2016 Influence Operation Targeted African- law/event/expert-roundtable-2020-disputed-election/ Americans in Social Media, N.Y. TIMES (Dec. 17, 2018), [https://perma.cc/U4W5-UVP5]. https://www.nytimes.com/2018/12/17/us/politics/russia 34 The Breaking News Consumer’s Handbook: Active -2016-influence-campaign.html [https://perma.cc/S4FT- Shooter Edition, WNYC (July 31, 2014), 3ETN]; Scott Shane & Alan Blinder, Secret https://media.wnyc.org/media/resources/2013/Sep/20/ Experiment in Alabama Senate Race Imitated Russian OTM_Consumer_Handbook.pdfl Tactics, N.Y. TIMES (Dec. 19, 2018), [https://perma.cc/DME9-TVU9]. Font edited for clarity. https://www.nytimes.com/2018/12/19/us/alabama- 35 The CDC site is available at: Coronavirus (COVID-19), senate-roy-jones-russia.html [https://perma.cc/A24B- CTR. DISEASE CONTROL RAH6]. https://www.cdc.gov/coronavirus/2019- 46 See generally Post-Election Audits, BRENNAN CTR. FOR ncov/index.html [https://perma.cc/P3CM-WV3E]. JUST. https://www.brennancenter.org/issues/defend- 36 See supra note 18. our-elections/election-security/post-election-audits 37 See supra note 17. 38 Tim Harper, Voting in the Time of COVID-19, [https://perma.cc/56CY-NUZK]. 47 For an introduction, see Risk-Limiting Audits Working BIPARTISAN POL’Y CTR. (Mar. 26, 2020), Group, Risk-Limiting Post-Election Audits: Why and https://bipartisanpolicy.org/blog/voting-in-the-time-of- How (Oct. 2012), covid-19/ [https://perma.cc/E45E-JWHM]. 39 Wendy Weiser & Max Feldman, How to Protect the https://www.stat.berkeley.edu/~stark/Preprints/RLAwh 2020 Vote from the Coronavirus, BRENNAN CTR. FOR itepaper12.pdf [https://perma.cc/5LV2-JF6P]. A self- JUST. (Mar. 16, 2020), paced online course on audits is available from the https://www.brennancenter.org/our-work/policy- Center for Tech and Civic Life at: solutions/how-protect-2020-vote-coronavirus https://www.techandciviclife.org/course/post-election- [https://perma.cc/V54C-3ZUT]. audits/ [https://perma.cc/WR8V-86P7]. AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 25 Fair Elections During a Crisis 48 Voting System Paper Trail Requirements, NAT’L CONF. 50 How Do I Request a Verified Badge on Facebook, STATE LEGIS. (June 27, 2019), FACEBOOK: HELP CENTER, https://www.ncsl.org/research/elections-and- https://www.facebook.com/help/1288173394636262 campaigns/voting-system-paper-trail- [https://perma.cc/ST4T-NB5L]. requirements.aspx [https://perma.cc/M765-ZL3K]. 51 Verified Account FAQs, TWITTER: HELP CENTER, 49 The rise of ballot-marking devices (BMDs) creates https://help.twitter.com/en/managing-your- new challenges to using paper ballots as the account/twitter-verified-accounts authoritative record of the vote that can be used to [https://perma.cc/W3DQ-JZA4]. 52 See Andrew Westrope, Nonprofit’s Free App Flags independently verify the outcome of an election. In jurisdictions that use BMDs, voters may not realize Suspicious Changes to Voter Rolls, GOV. TECH. (May that those slips of paper are actually their ballot, the 29, 2019), official record of their vote—and therefore that the https://www.govtech.com/security/Nonprofits-Free- App-Flags-Suspicious-Changes-to-Voter-Rolls.html ballot paper should be treated with care and [https://perma.cc/X54V-5PE2]. The VoteShield website examined carefully before being cast by deposit into can be found at http://www.voteshield.us the ballot box. Poll workers should be trained about [https://perma.cc/BF5W-3FH5]. what language to use to communicate this to the 53 Emily Velasco, Caltech Partners with Orange County voters. If nothing else, they should never be referred to Assess Integrity of June Primary Elections, CALTECH to as “receipts,” either formally or informally. They (May 23, 2018), are ballots to be deposited into the ballot box for https://www.caltech.edu/about/news/caltech-partners- counting. orange-county-assess-integrity-june-primary-elections- 82357 [https://perma.cc/QE3U-YSH8]. 26 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Appendix I: Other Reports on Election Reforms Organizational Title Link Author Bauer-Ginsberg The American Voting Experience: http://web.mit.edu/supportthevoter/www/file Report Report and Recommendations of s/2014/01/Amer-Voting-Exper-final-draft-01- the Presidential Commission on 09-14-508.pdf Election Administration Belfar Center The State and Local Election https://www.belfercenter.org/publication/stat Cybersecurity Playbook e-and-local-election-cybersecurity-playbook Bipartisan Policy Logical Election Policy https://bipartisanpolicy.org/report/logical- Center election-policy/ Brennan Center A Review of Robust Post-Election https://www.brennancenter.org/sites/default/ Audits files/2019- 11/2019_011_RLA_Analysis_FINAL_0.pdf Brennan Center Defending Elections: Federal https://www.brennancenter.org/sites/default/ Funding Needs for State Election files/2019- Security 08/Report_Defending_Elections.pdf Brennan Center Election Integrity: A Pro-Voter https://www.brennancenter.org/sites/default/ Agenda files/publications/Election_Integrity.pdf Brennan Center Noncitizen Voting: The Missing https://www.brennancenter.org/sites/default/ Millions files/2019- 08/Report_2017_NoncitizenVoting_Final.pdf Brookings Is Seeing Still Believing? The https://www.brookings.edu/research/is- Deepfake Challenge to Truth in seeing-still-believing-the-deepfake- Politics challenge-to-truth-in-politics/ Center for American Election Security in All 50 States https://www.americanprogress.org/issues/de Progress mocracy/reports/2018/02/12/446336/election- security-50-states/ Center for American Ending Foreign-Influenced https://www.americanprogress.org/issues/de Progress Corporate Spending in U.S. mocracy/reports/2019/11/21/477466/ending- Elections foreign-influenced-corporate-spending-u-s- elections/ Center for Election Voter Registration Database https://electioninnovation.org/wp- Innovation & Security content/uploads/2018/09/2018-VRDB- Research Security-Report.pdf Center for Strategic Countering Adversary Threats to https://csis-prod.s3.amazonaws.com/s3fs- and International Democratic Institutions public/publication/180214_Spaulding_Count Studies eringAdversaryThreats_Web2.pdf AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 27 Fair Elections During a Crisis Common Cause Email and Internet Voting: The https://www.commoncause.org/wp- Overlooked Threat to Election content/uploads/2018/10/ElectionSecurityRep Security ort.pdf Democracy Fund What Comes Next: Lessons for the https://www.democracyfund.org/media/uploa Recovery of Liberal Democracy ded/2018_WhatComesNext_vFINAL.pdf Kofi Annan Protecting Electoral Integrity in the https://www.kofiannanfoundation.org/app/u Foundation Digital Age ploads/2020/01/f035dd8e- kaf_kacedda_report_2019_web.pdf NAACP LDF Democracy Defended: Analysis of https://www.naacpldf.org/wp- Barriers to Voting in the 2018 content/uploads/Democracy_Defended__9_6 Midterm Elections _19_final.pdf NAACP LDF Democracy Diminished: State and https://www.naacpldf.org/wp- Local Threats to Voting Post- content/uploads/Democracy-Diminished- Shelby County, Alabama v. Holder Redraft-D-10-7-19.pdf National Academies Securing the Vote: Protecting https://www.nap.edu/read/25120/chapter/1 American Democracy **this report is behind a paywall National Task Force COVID-19 Election Guide https://www.electiontaskforce.org/s/ on Election Crises COVIDguidance Pen Truth on the Ballot: Fraudulent https://pen.org/wp- News, the Midterm Elections, and content/uploads/2019/03/Truth-on-the- Prospects for 2020 Ballot-report.pdf Penn Wharton Public The Business of Voting: Market https://publicpolicy.wharton.upenn.edu/live/f Policy Initiative Structure and Innovation in the iles/270-the-business-of-votin Election Technology Industry Pew Research Center U.S. Media Polarization and the https://www.journalism.org/2020/01/24/u-s- 2020 Election media-polarization-and-the-2020-election-a- nation-divided/ Rand Corp. Countering Russian Social Media https://www.rand.org/pubs/research_reports/ Influence RR2740.html Stanford Cyber Securing American Elections: https://fsi-live.s3.us-west- Policy Center Prescriptions for Enhancing the 1.amazonaws.com/s3fs- Integrity and Independence of the public/stanford_cyber_policy_center- 2020 U.S. Presidential Election securing_american_elections.pdf and Beyond Stern Center for Disinformation and the 2020 https://issuu.com/nyusterncenterforbusiness Business and Human Election: How the Social Media andhumanri/docs/nyu_election_2020_report? Rights Industry Should Prepare fr=sY2QzYzI0MjMwMA 28 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Appendix II: Brief Biographies of Ad Hoc Committee Members Andrew W. Appel Andrew W. Appel is a Eugene Higgins Professor of Computer Science at Princeton University. His research is in software verification, computer security, programming languages and compilers, and technology policy. He has studied voting machines and election policy since 2003, and served on the National Academy of Sciences, Engineering, and Medicine study committee that produced the 2018 report, “Securing the Vote: Protecting American Democracy.” .............................................................................. Julia Azari Julia Azari is an Associate Professor of Political Science at Marquette University. She is working on a book about weak parties and strong partisanship. She is the author of “Delivering the People’s Message: The Changing Politics of the Presidential Mandate,” (Cornell, 2014) and writes regularly for FiveThirtyEight.com and for the political science blog “The Mischiefs of Faction.” .............................................................................. Bruce Cain Bruce E. Cain is a Professor of Political Science at Stanford University and the Spence and Cleone Eccles Family Director of the Bill Lane Center for the American West. A pioneer in computer-assisted redistricting, he is a prominent scholar of elections, political regulation, and the relationships between lobbyists and elected officials. Prior to joining Stanford, Professor Cain was Director of the Institute of Governmental Studies at UC Berkeley from 1990-2007 and Executive Director of the UC Washington Center from 2005-2012. He was elected the American Academy of Arts and Sciences in 2000 and has won awards for his research (Richard F. Fenno Prize, 1988), teaching (Caltech 1988 and UC Berkeley 2003) and public service (Zale Award for Outstanding Achievement in Policy Research and Public Service, 2000). He is currently working on state regulatory processes and stakeholder involvement in the areas of water, energy and the environment. .............................................................................. Jack Doppelt Jack Doppelt is the Hamad bin Khalifa Al Thani Professor of Journalism at Medill and a faculty associate at Northwestern’s Institute for Policy Research. He is also the principal investigator at Social Justice News Nexus and the publisher of Immigrant Connect. He has served as a Charles Deering McCormick Professor of Teaching Excellence at Northwestern and as an Open Society Fellow, working with Al-Quds University in the West Bank to develop its journalism program. Doppelt’s expertise is media law and ethics, the reporting of legal and immigrant affairs, and the emerging tenets of social justice journalism. AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 29 Fair Elections During a Crisis Tiana Epps-Johnson Tiana Epps-Johnson is the Executive Director of the Center for Technology and Civic Life (CTCL), working to make U.S. elections more inclusive and secure. Prior to CTCL, she was the New Organizing Institute’s Election Administration Director and previously she worked on the Voting Rights Project for the Lawyers’ Committee for Civil Rights. In 2015, Epps-Johnson joined the inaugural class of Technology and Democracy Fellows at the Ash Center for Democratic Governance and Innovation at the Harvard Kennedy School. And, in 2018 she was selected to join the inaugural class of Obama Foundation Fellows. .............................................................................. Edward B. Foley Edward B. Foley holds the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs its election law program. His new book, Presidential Elections and Majority Rule (Oxford University Press, 2020), excavates the long-forgotten philosophical premises of how the Electoral College is supposed to work, as revised by the Twelfth Amendment to the U.S. Constitution, and then uses a historical analysis to provide a feasible basis for reform of state laws that would enable the Electoral College to operate according to majority-rule objectives it was designed to achieve. His book Ballot Ballots: The History of Disputed Elections in the United States (Oxford University Press, 2016) was named Finalist for the David J. Langum, Sr. Prize in American Legal History and listed as one of 100 “must- read books about law and social justice.” .............................................................................. John C. Fortier John C. Fortier is the Director of Governmental Studies for the Bipartisan Policy Center. Prior to joining BPC in April 2011, he was a research fellow at the American Enterprise Institute, where he served as the principal contributor to the AEI Brookings Election Reform Project, the executive director of the Continuity of Government Commission, and the project manager of the Transition to Governing Project. He was a regular contributor to AEI’s Election Watch series. He also served as the Director of the Center for the Study of American Democracy at Kenyon College. Fortier is the author of Absentee and Early Voting: Trends, Promises and Perils , the author and editor of After the People Vote: A Guide to the Electoral College , and the author and co-editor with Norman Ornstein of Second Term Blues: How George W. Bush Has Governed , and numerous academic articles in political science and law journals. 30 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Richard L. Hasen, Committee Chair Professor Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. Hasen is a nationally recognized expert in election law and campaign finance regulation, and is co-author of a leading casebook on election law. From 2001-2010, he served (with Dan Lowenstein) as founding co-editor of the quarterly peer-reviewed publication, Election Law Journal . He is the author of over 100 articles on election law issues, published in numerous journals including the Harvard Law Review , Stanford Law Review and Supreme Court Review . He was elected to The American Law Institute in 2009 and served as an Adviser on ALI’s law reform project, Principles of Election Law: Resolution of Election Disputes. Hasen’s latest book is Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press 2020). .............................................................................. Liz Howard Liz Howard serves as Counsel for the Brennan Center’s Democracy Program, focusing on cybersecurity and elections. Prior to that, she was the Deputy Commissioner for the Virginia Department of Elections coordinating many election administration modernization projects – including the adoption of online, paperless absentee ballot applications for which the department received a 2017 Innovations in American Government Bright Ideas Award from the Ash Center for Democratic Governance and Innovation at the Harvard Kennedy School. Additionally, Howard worked as general counsel at Rock the Vote, a nonprofit organization dedicated to engaging young people in politics. Before that she worked as a senior associate at Sandler Reiff in Washington, D.C. .............................................................................. David Kaye David Kaye is a Clinical Professor of Law at the University of California, Irvine, and the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. His 2019 book, Speech Police: The Global Struggle to Govern the Internet (Columbia Global Reports), explores the ways in which companies, governments and activists struggle to define the rules for online expression. AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 31 Fair Elections During a Crisis Jack Lerner Jack Lerner works to find solutions to problems at the intersection of law and technology, particularly how technology law and policy affect creative expression and innovation. He has written and spoken widely on copyright, privacy and other areas of technology law. Professor Lerner is a Clinical Professor of Law at the University of California, Irvine School of Law and Director of the UCI Intellectual Property, Arts, and Technology Clinic. In the Clinic, law students counsel and represent policymakers, artists, innovators, nonprofit organizations, and others on a range of IP and technology issues. Among other accomplishments, under Professor Lerner’s supervision students have obtained exemptions to the Digital Millennium Copyright Act on behalf of a wide coalition of documentary filmmakers that is helping filmmakers exercise their fair use rights, and worked with policy- makers in the developing world to conduct a major study of copyright limitations and exceptions among Pacific Rim economies. In 2016, Professor Lerner was named “California Lawyer Attorney of the Year” for his work obtaining changing copyright law in ways that affect documentary filmmakers and authors nationwide. .............................................................................. Michael T. Morley Michael T. Morley is Assistant Professor of Law at Florida State University College of Law, where he teaches and writes in the areas of election law, federal courts, remedies, and constitutional law. Professor Morley previously taught at Harvard Law School as a Climenko Fellow and Lecturer on Law. Prior to entering academia, he served as Special Assistant to the General Counsel of the Army in the Pentagon and clerked for Judge Gerald B. Tjoflat of the U.S. Court of Appeals for the Eleventh Circuit. Professor Morley also was a litigator at Williams & Connolly LLP and in the Supreme Court & Appellate group at Winston & Strawn, LLP, both in Washington, D.C. Professor Morley earned his bachelor’s degree magna cum laude from Princeton University and a J.D. from Yale Law School. His work has been cited in U.S. Supreme Court opinions and published in journals such as the Northwestern University Law Review , Emory Law Journal , and Boston College Law Review . .............................................................................. Janai S. Nelson Janai S. Nelson is Associate Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc. (LDF). As an organizational thought-leader at LDF, Nelson works with the President and Director-Counsel to determine and execute LDF’s strategic vision and oversee the operation of its programs, including having served as interim director of LDF’s Thurgood Marshall Institute. She is also a member of LDF’s litigation and policy teams, and was one of the lead counsel in Veasey v. Abbott (2018), a federal challenge to Texas’s voter ID law. She has testified before Congress on voter suppression, algorithmic bias, and in support of the Voting Rights Advancement Act. Prior to joining LDF in June 2014, Nelson was Associate Dean for Faculty Scholarship and Associate Director of the Ronald H. Brown Center for Civil Rights and Economic Development at St. John’s University School of Law where she was also a full professor of law. 32 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Brendan Nyhan Brendan Nyhan is a Professor in the Department of Government at Dartmouth College. His research, which focuses on misperceptions about politics and health care, has been published in journals including the American Journal of Political Science, Journal of Politics, Proceedings of the National Academy of Sciences, Pediatrics, and Vaccine. He has been named an Andrew Carnegie Fellow by the Carnegie Corporation of New York and a Belfer Fellow by the Anti-Defamation League and is a contributor to The Upshot at The New York Times. Nyhan received his Ph.D. from the Department of Political Science at Duke University and previously served as a RWJ Scholar in Health Policy Research and Professor of Public Policy at the University of Michigan. He co- edited the non-partisan watchdog Spinsanity , co-authored All the President’s Spin , a New York Times bestseller, from 2001-2004 and served as a media critic for Columbia Journalism Review from 2011-2014 .............................................................................. Cailin O’Connor Cailin O’Connor is a philosopher of science and applied mathematician specializing in models of social interaction. She is Associate Professor of Logic and Philosophy of Science and a member of the Institute for Mathematical Behavioral Science at the University of California, Irvine. Her book, The Misinformation Age , was published in 2019 with Yale Press, and her book, The Origins of Unfairness , was published in 2019 with Oxford University Press. .............................................................................. Norman Ornstein Norman Ornstein is a resident scholar at the American Enterprise Institute (AEI), where he studies politics, elections, and the US Congress. He is a cohost of AEI’s Election Watch series, a contributing editor and columnist for National Journal and The Atlantic, a BBC News election analyst, and the chairman of the Campaign Legal Center. Dr. Ornstein previously served as codirector of the AEI-Brookings Election Reform Project and senior counselor to the Continuity of Government Commission. A longtime observer and analyst of American politics and the US Congress, he has been involved in political reform for decades, particularly campaign finance reform and the reform of Senate committees. He has also played a part in creating the Congressional Office of Compliance and the House Office of Congressional Ethics. Dr. Ornstein was elected fellow of the American Academy of Arts and Sciences in 2004. AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 33 Fair Elections During a Crisis Nina Perales Nina Perales is Vice President of Litigation for MALDEF, the Mexican American Legal Defense and Educational Fund. In that role, Perales supervises the legal staff and litigation docket in MALDEF’s offices throughout the United States. Perales is best known for her work in voting rights, including redistricting and vote dilution cases. Her litigation has included successful statewide redistricting cases in Texas and Arizona including LULAC v. Perry (2006), a Voting Rights Act challenge to Texas congressional redistricting which Perales led through trial and argued successfully in the U.S. Supreme Court. Perales also led the challenge under the National Voter Registration Act to an Arizona voter law and secured a favorable ruling from the U.S. Supreme Court in Arizona v. ITCA (2013) and the challenge to Texas legislative redistricting in which the U.S. Supreme Court found racial gerrymandering of Latino voters in 2018 (Abbott v. Perez) . Perales also specializes in immigrants’ rights litigation, including leading the case striking down an anti-immigrant housing ordinance in Farmers Branch, Texas and the defense of DACA in a multi-state challenge to that initiative. Perales earned a Bachelor’s degree from Brown University and a J.D. from Columbia University School of Law. .............................................................................. Nate Persily Nate Persily is the James B. McClatchy Professor of Law at Stanford Law School, with appointments in the departments of Political Science, Communication, and FSI. He is co-director of the Stanford Project on Democracy and the Internet, the Stanford Cyber Policy Center, and Social Science One, an initiative to facilitate greater sharing of privacy-protected Facebook data to social scientists. Professor Persily’s scholarship focuses on voting rights, political parties, campaign finance, redistricting, and election administration. His current work, for which he has been honored as an Andrew Carnegie and CASBS Fellow, examines the impact of changing technology on political communication, campaigns, and election administration. He has served as a special master or court-appointed expert to craft legislative districting plans for numerous states and as the Senior Research Director for the Presidential Commission on Election Administration. He is co- author of the leading election law casebook, The Law of Democracy (2016) and a member of the American Academy of Arts and Sciences. He also serves as a commissioner on the Kofi Annan Commission on Elections and Democracy in the Digital Age. 34 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY  Fair Elections During a Crisis Richard H. Pildes Richard H. Pildes is the Sudler Family Professor of Constitutional Law at New York University School of Law, an elected member of the American Academy of Arts and Sciences and the American Law Institute, and a Guggenheim and Carnegie fellow. He is one of the country’s leading experts on legal issues concerning American democracy and the structure of American government, including voting rights, elections, redistricting, the Voting Rights Act, campaign finance, the powers of the President and Congress, as well as constitutional law more generally. His co-authored casebook, The Law of Democracy: Legal Regulation of the Political Process, created this area as a field of study in the law schools. A law clerk to Justice Thurgood Marshall at the United States Supreme Court, Professor Pildes also has successfully argued cases before the Court and his work is frequently cited there. As a public commentator, he was the legal analyst for the NBC team nominated for an Emmy Award for outstanding coverage of the 2000 Presidential election litigation. Some of his major recent academic articles include Populism and Institutional Design: Methods of Selecting Candidates for Chief Executive; Romanticizing Democracy , Political Fragmentation , and the Decline of American Government ; Law and the President ; Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America ; Is the Supreme Court a “Majoritarian” Institution ; The Constitutionalization of Democratic Politics ; and Separation of Parties, Not Powers . .............................................................................. Bertrall Ross Bertrall Ross is the Chancellor’s Professor of Law at Berkeley Law. His research is driven by a concern about democratic responsiveness and accountability, as well as the inclusion of marginalized communities in the political process. Bertrall’s past scholarship in the areas of election law, constitutional law, and statutory interpretation has been published in several law reviews including the Columbia, NYU, and the University of Chicago. He is currently working on two book projects: one on gerrymandering and the other on voter data as a tool for disfranchisement. Bertrall earned his J.D. from Yale Law School and Masters degrees from the London School of Economics and Princeton University’s Woodrow Wilson School of Public and International Affairs. Prior to joining Berkeley Law, he was a Kellis Parker Academic Fellow at Columbia Law School. .............................................................................. Alex Stamos Alex Stamos is a cybersecurity expert, business leader and entrepreneur working to improve the security and safety of the Internet through his teaching and research at Stanford University. Stamos is an Adjunct Professor at Stanford’s Freeman-Spogli Institute and a visiting scholar at the Hoover Institution AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY | 35 Fair Elections During a Crisis Charles Stewart III Charles Stewart III is the Kenan Sahin Distinguished Professor of Political Science at MIT, where he has been on the faculty since 1985, a Fellow of the American Academy of Arts and Sciences, and formerly an Andrew Carnegie Fellow. While at MIT, he has served in a number of leadership capacities, including Head of the Department of Political Science and Associate Dean of Humanities, Arts, and Social Sciences. .............................................................................. Michael Tesler Michael Tesler is Associate Professor of Political Science at UC Irvine, where he teaches courses on public opinion, racial politics, elections, political psychology, American government, and quantitative research methods. He is author of Post-Racial or Most Racial? Race and Politics in the Obama Era (University of Chicago Press, 2016), and co-author with David O. Sears of Obama’s Race: The 2008 Election and the Dream of a Post-Racial America (University of Chicago Press, 2010). His latest book, co-authored with John Sides and Lynn Vavreck Identity Crisis: The 2016 Presidential Campaign and the Battle for the Meaning of America , was published by Princeton University Press in October 2018. .............................................................................. Ciara Torres-Spelliscy Ciara Torres-Spelliscy is a professor of law at Stetson University College of Law, teaching courses in Election Law, Corporate Governance, Business Entities, and Constitutional Law. Prior to joining Stetson’s faculty, Professor Torres-Spelliscy was counsel in the Democracy Program of the Brennan Center for Justice at NYU School of Law where she provided guidance on the issues of money in politics and the judiciary to state and federal lawmakers. She was an associate at Arnold & Porter LLP and a staffer for Senator Richard Durbin. She holds degrees from Harvard and Columbia Law School. .............................................................................. James Owen Weatherall James Owen Weatherall is Professor of Logic and Philosophy of Science at the University of California, Irvine, where he is also a member of the Institute for Mathematical Behavioral Sciences and the Center for Cosmology. He is the co-author, most recently, of The Misinformation Age: How False Beliefs Spread , with Cailin O’Connor; his previous books include Void: The Strange Physics of Nothing and the New York TImes bestselling The Physics of Wall Street: A Brief History of Predicting the Unpredictable . 36 | AD HOC COMMITTEE FOR 2020 ELECTION FAIRNESS AND LEGITIMACY