Democracy has seen better days than November 6th, 2018. Though dozens of diverse new leaders were elected to Congress, several states were plagued by dysfunctional voting systems, effectively disenfranchising countless Americans. This was largely the result of voter suppression measures enabled by a 2013 Supreme Court ruling that ravaged the Voting Rights Act, allowing states to change their election laws without federal approval. “Our country has changed,” Chief Justice John Roberts wrote in the decision, “and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
As has been made abundantly clear, Roberts jumped the gun on the whole “racism is over” thing. In North Dakota, thousands of Native Americans living on reservations were told they needed a residential address to vote. In Kansas, only one polling place was opened to serve over 13,000 voters in Dodge City. In Georgia, Secretary of State Brian Kemp purged hundreds of thousands of voters from the rolls and instituted a controversial “exact match” policy that was later ruled by a federal judge to be restrictive of voting rights. Kemp refused to step down from overseeing the state’s elections even as he was running for governor, only resigning after the election concluded. He narrowly defeated Democrat Stacey Abrams, who refused to concede, citing the “gross mismanagement of our elections process.”
“The election system is getting hit by a wrecking ball because there are constantly more and more inventive tactics being used to suppress the vote,” Oregon Sen. Ron Wyden tells Rolling Stone. Wyden’s state has for 20 years allowed residents to vote by mail, a move that has led to some of the highest turnouts in the nation as the elderly, disabled and working class are able to cast their ballots with little-to-no hassle. In 2017, Wyden and Rep. Earl Blumenauer (D-OR) introduced the Vote By Mail Act, which would require every state to provide residents with a similar option. Earlier this month, Wyden kindly reminded his followers of how easy it is to vote in Oregon.
— Ron Wyden (@RonWyden) November 5, 2018
“Experts know that one of the biggest ways to increase voter turnout is #VoteByMail,” Wyden tweeted a week later as states like Georgia and Florida struggled to tabulate votes. “Oregon and Colorado have led the way on making voting easier and more accessible. It’s time for Congress to follow suit and pass my bill to expand Oregon-style #VoteByMail to every state.”
The ability to vote by mail would also allow states a way to mitigate the impact of increasingly unreliable voting machines. Problems with machines were reported in Missouri, Alabama, South Carolina, North Carolina and other states across the nation this year. In Texas, some machines switched votes from Democratic to Republican. In New York, humidity was to blame for malfunctioning machines and long lines. In Georgia, voters waiting in line for hours after power cords went missing. Such delays have been found to have a disproportionate effect on minority communities.
According to the New York Times, non-profit voting equipment tracker Verified Voting estimates that 350,000 voting machines are used in American elections. Many of these machines are at least 10 years old, opening them up to a host of technical issues, many of which were borne out earlier this month. Just as concerning is how susceptible they are to cyber attacks, something that has brought manufacturers into the focus of Congress since the 2016 election cycle, during which Russia targeted the election systems of 21 states, according to the Department of Homeland Security.
Though DHS Secretary Kirstjen Nielsen has labeled unsecured voting machines a national security issue, President Trump hasn’t fully acknowledged the threat, nor have many Republican lawmakers. Last December, Sens. Amy Klobuchar (D-MN) and James Lankford (R-OK) introduced the Secure Elections Act, garnering bipartisan support. The act would have fostered cooperation between states and the federal government, as well as encouraging the use of paper ballots, which ensure that even if an election system were to be hacked, a paper trail would exist so that the results could be reconciled. Five states — Delaware, Georgia, Louisiana, New Jersey and South Carolina — vote without any paper trail, while nine others — including Florida, Texas and Pennsylvania — only use a paper trail in some counties.
The Secure Elections Act was an encouraging step, but voting machine manufacturers were able to successfully lobby for the language promoting paper ballots to be removed from the bill, which was then scuttled entirely by the White House just as it was up for review. Earlier in 2018, Democrats were able to allocate $380 million for election security in the omnibus spending bill, but many states didn’t see their share of the money until it was too late to bolster their systems for the midterms, and even then the money wouldn’t have come close to covering the cost of the type of overhaul many feel is necessary.
Though National Intelligence Director Dan Coats has said that the warning lights are “blinking red” regarding the threat of cyber attacks on America’s election system, not much changed from 2016 to 2018. Democrats want to make sure lawmakers are more proactive leading into 2020, starting now. “It’s urgent with capital letters,” Wyden says of the need to reform the election system. “If we were to move now, quickly, while what happened with this last election is fresh in people’s minds, you could have a very different system in place for 2020.”
Part of the problem is the voting machine manufacturers, which have largely refused to cooperate with Congress and seem to be totally uninterested in spending money to bolster the security of their machines. “They think they’re above the law,” says Wyden. “They think they don’t have to answer to anybody. I’ve written them letters. I’ve contacted them repeatedly. They either wrote back nothing or were completely unresponsive. These are some of the most powerful people in our democracy and they think they’re accountable to no one. I was not asking about complicated issues of cryptography policy; I was asking, ‘Do you have a person who’s assigned for security?’ I was asking about audits. Complete stonewall.”
“I’ve dealt with some big lobbies in my time in public service,” he adds. “These guys are the most irresponsible I’ve met.”
When the Senate Rules Committee held a hearing on election security in July, two of the three biggest voting machine manufacturers bailed. They’ve insisted there’s nothing wrong with paperless voting despite the contention of countless experts that creating a paper trail is the easiest way to fight cyber attacks. The largest voting machine manufacturer, Electronic Systems & Software, was found to have not been forthright with both Wyden and the New York Times about installing remote access software on some of its machines, greatly increases their susceptibility to hacking. When Virginia asked Hart InterCivic, whose decade-old eSlate machines were responsible for the vote-flipping in Texas, to provide the state with a machine to conduct security testing, the company flat-out refused. When Sen. Mark Warner (D-VA) confronted a Hart InterCivic VP of operation Peter Lichtenheld about the slight after the Senate Rules Committee hearing in July, Lichtenheld lied that they didn’t need to conduct testing because Virginia had already moved on to using different machines. (They hadn’t at the time of the request, although they ultimately would.)
“I’ll tell you one of the things I’d do about it,” says Wyden. “I’d subpoena them. I’d subpoena the voting machine companies and and I’d say, ‘We’re going to ask you specifically about all of these problems that you have, about the abuses and areas where you have failed to serve the public and that you’re lying about.”
In January, Democrats will have control of the House of Representatives for the first time since Trump took office. Regardless of whether they’ll move to subpoena voting machine manufacturers, they appear poised to do whatever they can to remedy the nation’s election system. House Democrats have already said that they plan to put up a voting rights package that would effectively undo the Supreme Court’s 2013 gutting of the Voting Rights Act. Though it was tabled by the White House in August, sponsors of the Secure Elections Act are hopeful that a new version will be able to pass. In addition to the Vote By Mail Act, Wyden in October introduced the Protecting American Votes and Elections (PAVE) Act, which would require paper ballots and audits nationwide. On a more grassroots level, Stacey Abrams recently announced the launch of Fair Fight Georgia to “pursue accountability in Georgia’s elections and integrity in the process of maintaining our voting rolls.”
Though a Republican-controlled Senate means comprehensive election reform at the federal level is unlikely, keeping voting rights in the national conversation by putting measures up for a vote is critical, as the legitimacy of the 2020 elections will be in the crosshairs of Republican-controlled state legislatures and foreign actors like Russia. American democracy as it was originally intended could be on its last legs if real action isn’t taken to prevent another “grotesque spectacle,” as Wyden described the suppression-fueled chaos leading up to and following the 2018 midterms.
“These barriers people have to overcome to vote are really punishing people of color, young people, people with disabilities, working people,” he says. “I think if the founding fathers could see just how many hurdles are put up for Americans to exercise their constitutional right to vote, I mean, they’d just … this is not what they had in mind.”
This post has been updated.