Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.

—John Adams

Explanation of Best Practices and Grading System

The grading system in this Scorecard is based on an analysis of the specific election laws in each state. The analysis was prepared by Heritage Foundation analysts and reviewed by election law experts in each state, and the accuracy of the information was checked with state election officials who responded to our request (fortunately, the vast majority). The final summary was then sent to the chief election official or responsible state board of elections in every state to give those officials a final opportunity to correct any errors.

We provide individual scores in 12 different areas that we believe are essential to secure elections, with a final score based on a compilation of the individual scores for each best-practice recommendation. These 12 areas include:

  1. Voter identification;
  2. Maintaining the accuracy of a state’s voter registration list;
  3. Rules governing absentee ballots;
  4. Rules governing vote trafficking;
  5. Access of election observers to ensure transparency;
  6. Citizenship verification;
  7. Voter assistance procedures;
  8. Vote-counting practices;
  9. Election litigation procedures;
  10. Rules governing voter registration;
  11. Restriction of automatic registration; and
  12. Rules surrounding the private funding of elections.

The individual scores provide the public and state legislators and other officials with a measurement in each of the 12 areas we have identified to give them a better idea of where their state laws and procedures meet the best-practices standards and where they need improvement.

As a reminder, however, even the best laws are not worth much if responsible officials do not enforce them rigorously. It is up to the citizens of each state to make sure that their elected and appointed public officials do just that.

Best-Practices Standards

One of the most basic requirements for a secure election is the ability to authenticate the identity of each eligible voter. There is no question that every individual who is eligible to vote should have the opportunity to do so. It is equally important that the votes of eligible voters are not stolen or diluted by fraudulent ballots cast by ineligible voters.

The evidence from academic studies, including by The Heritage Foundation, and actual turnout in elections in states like Georgia and Indiana that have had ID laws in place for many years demonstrates that, contrary to the claims of some, voter ID requirements do not depress turnout, including turnout by minority, poor, and elderly voters. Obtaining photo IDs for those few individuals who do not already have them is easy to do and does not impose a tangible burden on voters.

Moreover, polling shows that an overwhelming majority of Americans, regardless of their race, ethnicity, socioeconomic status, or party affiliation, support voter ID requirements. They believe correctly that a voter ID requirement is no different from requirements—which they confront every day under current laws and practices—that they show an ID for other, often less important tasks such as cashing a check, buying alcohol or firearms, entering a government building, boarding a plane, seeing a doctor, obtaining a prescription at a pharmacy, checking into a hospital, and applying for a marriage license or other government benefit.

So, obviously, did the Carter–Baker Commission on Federal Election Reform, which stated in its final report that “[t]he electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo IDs currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important.”

A voter ID requirement can deter not just impersonation fraud, but also voting under fictitious voter registrations, double-voting by individuals registered in more than one state, and voting by illegal aliens. A voter should have to show a government-issued photo ID to vote both in-person and by absentee ballot by providing a photocopy of that ID or some other unique identifier with the returned ballot.

States should provide such a government-issued ID free to anyone who cannot afford one. For individuals who are physically unable to go to a state office to obtain a state ID, states should provide appropriate transportation from their residence to the state ID office and back to their residence or provide a mobile van, as Alabama has done, to travel to the home of permanently disabled individuals to provide them with a valid ID.

As part of that effort, every driver’s license or state photo ID issued should note prominently whether the individual is a citizen or non-citizen to prevent aliens, who are not eligible to vote in most state and all federal elections, from participating in the election process. Acceptable IDs that meet basic security requirements include driver’s licenses, state non-driver’s ID cards, U.S. passports, U.S. military IDs, tribal government IDs, and IDs issued by state colleges and universities (but only if they prominently display whether the student is a citizen).

There should be no affidavit or other exceptions of any kind to the ID requirement. Given that the vast majority of Americans already have valid IDs, and given that states have made extensive efforts to provide free IDs to those who do not have them, there is no valid reason to provide an exception that voids the security of an ID requirement and allows individuals to vote if their identities cannot be authenticated.

As many studies have found, including the previously referenced Pew Foundation, Government Accountability Institute, and Public Interest Legal Foundation reports, one of most significant problems in our election process is the chronic inaccuracy of voter registration rolls that states do not properly maintain. When the U.S. Supreme Court upheld Indiana’s new voter ID requirement in 2008, it noted that as of 2004, “Indiana’s voter rolls were inflated by as much as 41.4%” with registrations that were no longer valid because the voters were registered more than once, had moved, had died, or had become ineligible for some other reason. Yet they remained on the voter rolls.

The high mobility of the American public and the increasing influx of aliens (both legal and illegal) into the country has made this problem even more difficult. States are also not taking advantage of modern technology and government and commercial databases to supplement their voter registration systems to verify the accuracy of voter registrations.

The 2013 Presidential Commission on Election Administration appointed by President Barack Obama concluded that accurate voter registration rolls are essential to the proper management of elections and that inaccurate registration lists directly affect the ability of individuals to vote and reduce the ability of political parties and candidates to monitor elections to detect mistakes, fraud, and other irregularities. In its 2014 Election Administration & Voting Survey Comprehensive Report to Congress, the U.S. Election Assistance Commission voiced a similar concern, finding that (among other problems) inaccurate voter lists resulted in voters showing up at the wrong polling places.

Section 303 of the Help America Vote Act of 2002 (52 U.S.C. § 21083) requires states to implement “a single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the State level that contains the name and registration information of every legally registered voter in the State and assigns a unique identifier to each legally registered voter.”

Computerized statewide voter registration lists should be designed to communicate seamlessly with other state record databases to allow frequent exchanges and comparisons of information relevant to a voter’s continued eligibility. For example, when individuals change the residence addresses on their driver’s licenses with their state Departments of Motor Vehicles (DMVs), that information should automatically be sent to state election officials so that the voter registration address of those individuals are also changed to their new residential addresses. This benefits voters by ensuring that they are registered to vote at the correct polling locations for their new residential addresses and prevents potential fraud by individuals voting in locations where they no longer live and casting votes in federal, state, or local races in which they are not eligible to vote.

In order to maintain the accuracy of an individual’s voter registration, there should be regularly scheduled comparisons (ideally, monthly) of the statewide voter registration list with the databases maintained by the DMV; the state corrections department (for felons whose ability to vote has been taken away); state vital records; and state welfare and public assistance agencies to find information relevant to registration such as address changes, deaths, citizenship status, or other factors affecting eligibility. To find registered voters who die outside of the state and whose deaths may not be in the state’s vital records, states must access the Social Security Administration’s death index and master death file.

Local election authorities should be taking advantage of other town, city, and county records, such as property tax records. States require individuals to register where they reside. Yet as the reports from the Government Accountability Institute and the Public Interest Legal Foundation show, thousands of individuals are improperly and potentially fraudulently registered at nonresidential addresses. Thus, the residential addresses on all new voter registration applications should be compared with local property tax records to ensure that they are residences and not commercial or industrial addresses or vacant or undeveloped lots in residential areas.

Similarly, when reviewing a new voter registration application, the current voter registration list should be checked for the names of all individuals registered at that address and compared to the information available from local property tax records to verify how many individuals are registered at that residential address to find any anomalies. For example, if property tax records show that the registered address is a single-family home but the registration list shows that 30 individuals are registered at that address, this should raise a red flag that warrants further investigation, as this could be an indication of fraud or out-of-date registrations.

Election officials should research all individuals registered at the same address. If registrants are found with only slight differences in their names, those registrations should be checked to ensure that they are not multiple registrations by the same individual. For example, many voter registration systems are not adequately designed to detect that John S. Smith registered at 100 Main Street may be the same individual as John Samson Smith who is also registered at 100 Main Street. Voter registration system software should bring such anomalies to the attention of election officials for additional investigation.

Election officials should be using the U.S. Postal Service’s National Change of Address (NCOA) system to find voters who have moved to ensure that they are not registered in more than one location or more than one state. Only about 60 percent of citizens inform the post office or election officials when they move to a new residence. Accordingly, the NCOA system should be supplemented with top-level commercial data such as data from credit agencies that provide notice of a residential move and an individual’s new address.

Registration of individuals in more than one state is a significant problem. States should be comparing their voter registration lists to find individuals registered in two different states to ensure that voters are registered at the correct location. This was one of the key recommendations of President Obama’s Presidential Commission on Election Administration.

One program designed to provide such data is the Electronic Registration Information Center (ERIC), a consortium that is managed by the states. States upload their voter registration information to ERIC so that it can be compared with information in other states and provide each state with a report on individuals who have duplicate or multiple state registrations. States should participate in the ERIC program1 and enter into cooperative agreements with other states to compare their voter lists to find individuals who are registered in more than one state. Such an agreement, for example, could have prevented the fraud engaged in by Wendy Rosen, a congressional candidate in 2012 in Maryland who was forced out of the race after it was discovered that she was registered in and had illegally voted in both Maryland and Florida in the 2006 and 2010 elections.

To assist in remedying this problem, states should ensure that their state voter registration forms require new registrants to provide information on where they were previously registered and that the state is authorized to send written notice to the prior locality to cancel the prior registration.

Transparency is a fundamental requirement of free, fair, and secure elections. It requires states to make their voter registration lists available (except for confidential information such as Social Security numbers or driver’s license numbers) to candidates, political parties, nonprofit organizations, and the public. This would not only help candidates and political parties reach voters in the political sphere, but also give the public and those outside of the government the ability to verify the accuracy of voter registration rolls and act as a check on the work of government officials. That type of transparency is both why we have a Freedom of Information Act that applies to the federal government and why states have sunshine laws that apply to state governments.

If a state has online voter registration, such registration should be allowed only for individuals for whom there is already an existing state record such as a driver’s license, where the identity of the individual was previously verified and the state record contains all of the information required to register to vote, including a signature. Otherwise, the state will be unable to verify the identity and authenticity of an online registration, and its online voter registration system will be open to cyber fraud.

States should also take advantage of technological advances to ensure that their voter registration and election systems meet the highest security standards. Thus, all states using electronic poll books in their polling places instead of the traditional printed voter registrations lists should have the photograph of the voter taken from available state records, such as the state’s DMV, next to the voter’s name and registration information. This allows election officials to identify voters visually when they check in at a polling location and can act as a double check in states with an ID requirement for voting.

States that take away the ability of a convicted felon to vote should use information gleaned from jury lists to update their voter registration rolls. Many federal courts, for example, obtain their lists of prospective jurors from voter registration or DMV lists provided by state election officials. States should condition requests from federal courts for such records on an agreement by the federal courts to notify state election officials if an individual is convicted of a felony in the federal court or is excused from jury service because of a prior conviction, non-citizenship, or some other disqualifying feature.

[1] While The Heritage Foundation encourages states to participate in the ERIC program, we note that the ERIC agreement apparently attempts to restrict the ability of a state to publicly disclose information and data on its voter registration list maintenance. Such a restriction is prohibited by the National Voter Registration Act, which specifically provides that states “shall make available for public inspection and …photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.” 52 U.S.C. § 20507(i)(1).

As the Florida Department of Law Enforcement said in a 1997 report, absentee ballots are the “tool of choice of those who are engaging in election fraud.” That is because they are the only type of ballot voted outside the supervision of election officials and outside the watchful eyes of election observers. They also lack a verifiable chain of custody when they are either mailed back to election officials or, in states that allow vote trafficking, picked up and collected by third parties such as candidates, campaign staffers, party activists, and political consultants.

This makes absentee ballots vulnerable to fraud and voters themselves vulnerable to coercion, intimidation, and pressure in their homes. Examples include voters in Martin, Kentucky, who were threatened by the former mayor, Ruth Robinson, along with her husband and son, with eviction from public housing or properties Robinson owned if they did not cast their absentee ballots for Robinson in her 2012 campaign for re-election. Their convictions (and those of many others) for absentee ballot fraud are outlined in The Heritage Foundation’s Election Fraud Database.

Mail-in and absentee ballots make illegal vote-buying easier because the buyer can ensure that the voter is voting the way he is being paid to vote—something that cannot happen in a polling place with a secret ballot. This is illustrated by the 2019 conviction of Frank Raia, a city council candidate in Hoboken, New Jersey, who orchestrated a widespread scheme that bribed low-income residents for their absentee ballots in a 2013 election.

The problems created by the lack of a chain of custody with mailed ballots are well documented in reports that the U.S. Election Assistance Commission (EAC) files with Congress after every federal election. An analysis of the 2012, 2014, 2016, and 2018 elections showed that over 28 million mail ballots were “unaccounted” for, meaning that election officials do not know what happened to them after they were given to the U.S. Postal Service for delivery to voters. The only thing that is known is that they were never returned by voters. There are many theories about what may have happened to these ballots, from misdelivery to voters’ deciding not to return them, but the bottom line is that tens of millions of ballots disappeared on a scale not seen at polling places. The same reports also show that 2.7 million ballots were sent to the wrong addresses and returned as “undeliverable” by the U.S. Postal Service.

To reduce security problems, all absentee ballots should either be notarized or include both the signature of a witness who can verify that it was the voter who completed the ballot and the printed name, address, and telephone number of the witness so that the witness can be contacted if the authenticity of the ballot is questioned. To avoid giving vote traffickers and others the ability to collect as many ballots as possible and ensure that voters are voting the way the traffickers want them to vote, no individual should be allowed to witness more than one absentee ballot of a voter who is not related to that individual. Even if a state has an ID requirement for absentee ballots, the signatures of voters on absentee ballots should be compared to the signatures of the voters on their registration files to ensure that some other individual, such as a family member with access to a voter’s ID, has not completed the ballot instead of the voter.

No completed absentee ballot received from a voter should be removed from its envelope until the verification process—a verification process that is subject to observation by designated observers of the candidates and/or the major political parties—has been completed. All voters who wish to cast an absentee ballot should be required to fill out a signed request each time they want to vote using an absentee ballot in an election. Given the inaccuracy of voter registration lists and the problems that states have keeping them up-to-date as individuals move, die, or become ineligible to vote, states should not maintain permanent absentee ballot lists and should not automatically mail absentee ballots or absentee ballot request forms to individuals without first receiving a specific request for an absentee ballot from the voter in a particular election.

The deadline for receipt of all absentee ballots should be the closing of polls on Election Day in order to obviate any disputes about the timing of absentee ballots and problems with the U.S. Postal Service’s failure to postmark an envelope. The only exception that a state may want to consider is for overseas military or other governmental personnel and their families who, as demonstrated by numerous reports, often suffer long delays in delivery of mail, particularly in remote locations and combat areas.

The use of drop boxes should be limited because of their inherent insecurity. Having unattended, unsecured drop boxes is the equivalent of the manager of a polling location’s taking the ballot box filled with completed ballots out of the polling place at the end of Election Day and simply setting it out on the curb unmonitored for pickup at some later point by election officials. Because of the opportunity it would provide for fraud or outright theft of the ballots, no one would think that this was a good idea. If authorized, states should require that drop boxes be in settings where they are under 24-hour security, under video surveillance, and located in government buildings.

As noted, the EAC reports on the 2012, 2014, 2016, and 2018 elections showed that almost three million mail ballots were sent to the wrong addresses. In the 2020 election, when (because of the COVID-19 pandemic) there was a vast increase in the number of absentee ballots used by voters, the EAC reports that an additional 1.1 million ballots were sent to the wrong addresses.

Yet most election officials have no procedures in place to investigate the validity of the registration of any registered voter whose requested absentee ballot is returned as undeliverable by the U.S. Postal Service. In order to maintain the accuracy of the voter registration system, each time this occurs, there should be an investigation to determine whether the return of the ballot was a mistake by the USPS, the voter’s registered address is wrong, or the voter has moved or for some other reason no longer resides at his or her registered address.

Vote trafficking (also called vote harvesting) is the collection of absentee ballots from voters by third parties who then deliver the ballots to election officials. The problem with this practice is that there is no way to guarantee that the ballots are delivered or that they are delivered unaltered and unchanged.

No one disputes the need for absentee ballots for individuals who cannot make it to their neighborhood polling place on Election Day because they are sick, physically disabled, or serving our country abroad. But in addition to being able to mail back a completed ballot, only a voter, a member of his or her immediate family, or a designated caregiver should be allowed to deliver an absentee ballot personally to election officials.

States that have legalized vote trafficking are handing party activists, campaign managers and campaign staff, political consultants, and other political guns-for-hire who have a vested political or monetary interest in winning the election the ability to manipulate the outcome through the intimidation and coercion of voters in their homes or the outright theft and forgery of their ballots. Allowing third parties access to voters’ ballots is an ill-advised policy that threatens the integrity of the election process.

The problem with this practice is illustrated by North Carolina’s 2018 Ninth Congressional District election, which the State Board of Elections overturned because of absentee ballot fraud that included vote trafficking by a political consultant and his associates. The board concluded in a report issued in 2019 that the election “was corrupted by fraud, improprieties, and irregularities so pervasive that its results are tainted as the fruit of an operation manifestly unfair to the voters and corrosive to our system of representative government.”

In 2012, a Miami-Dade County grand jury issued a public report recommending that the Florida legislature change its law to prohibit anyone from being “in possession of more than two absentee ballots at one time, unless the ballots…are those of the voter and the voter’s immediate family.” The grand jury summarized the myriad problems involved in allowing vote trafficking:

[O]nce that ballot is out of the hands of the elector, we have no idea what happens to it. The possibilities are numerous and scary….

If the ballot is complete and the return envelope is signed and not sealed, the [vote trafficker] can remove the ballot from the secrecy envelope and see the private, confidential selections the elector made on the ballot. Similarly, if the ballot is not completely voted and the return envelope is signed and not sealed, the [vote trafficker] can remove the ballot from the secrecy envelope…and then vote the rest of the ballot in lieu of the elector. If the [vote trafficker] does not like the selections made by the elector, the [vote trafficker] can simply throw the ballot away and no one would ever know. All of these possibilities are present if an elector relinquishes, to a [vote trafficker], control of a fully or partially marked ballot contained in a signed but unsealed return mailing envelope.

The more unsettling issue for us is [that] each of the above illegal actions can also take place with a [vote trafficker] picking up a fully or partially marked ballot contained in a signed and sealed return mailing envelope. The [vote trafficker] can either stealthily or surgically open the envelope, view the choices of the voter and then decide whether the un-voted portions of a partially completed ballot will be filled out by the [vote trafficker] or whether, depending on the elector’s choices, the ballot will simply be discarded.

The rules governing absentee ballots should not make them susceptible to theft, forgery, and coercion. Vote trafficking should be banned.

Transparency is essential to the election process and vital to maintaining public confidence in the fairness and legitimacy of the outcome. For this and other reasons, numerous entities from the U.S. Department of State to the International Republican Institute and the National Democratic Institute regularly send Americans abroad to observe elections in other countries around the world. As the Carter Center’s Democracy Program has stated, “election observers play a key role in shaping perceptions about the quality and legitimacy of electoral processes.” According to the Carter Center, observers must be allowed to “assess the casting and counting of ballots” as well as the “tabulation process, electoral dispute resolution, and the publication of final results.”

States should provide election observers with access to every aspect of the election process. This includes not only the opening of polling places and operations during Election Day and early vote periods, but also the closing of polls, the transportation of ballots and ballot boxes from polling locations to election offices, the verification and opening of absentee ballots, and the counting, tabulation, and reporting of votes.

The only limitation on such observers should be that they cannot interfere with the voting and counting process. They should be legally allowed to be in a position—exactly like election officials—to observe everything going on other than the actual voting by individuals. Election officials should be prohibited from stationing observers so far away that they cannot meaningfully observe the process.

Only lawful citizens can vote in state and federal elections, although some states allow aliens to vote in local elections. Currently, states are not verifying the citizenship of these individuals and have almost no safeguards in place to prevent non-citizens (whether they are here legally or illegally) from registering and voting.

From Gustavo Araujo Lerma, a Mexican citizen who was convicted in California in 2019 for repeatedly voting in elections for more than two decades, to Marcello Villaruz, another alien who (along with his wife) voted illegally in the 2016 presidential election in Illinois, to Michael Nana Baako, a citizen of Ghana who voted illegally in 10 federal elections in Maryland, the problem is occurring repeatedly all over the country, and such individuals are rarely caught.

In 2018, Pennsylvania officials were forced to admit that a “glitch” in the state’s DMV driver’s license system had registered more than 11,000 aliens to vote without election officials realizing they had a problem until years later. The Public Interest Legal Foundation released a series of studies, based on state records of letters from aliens to local election officials asking to be removed from voter rolls because they are not citizens, finding that thousands of aliens were mistakenly registered—without the knowledge of election officials—in Virginia, Michigan, New Jersey, and other states. According to the PILF, many cast ballots before being removed from the voter registration lists.

The best source of information on citizenship status is the U.S. Department of Homeland Security, which maintains databases on all aliens legally in the country as well as illegal aliens who have been detained at some point and have had a record created on them. While DHS will not have information on illegal aliens who have never been stopped or detained, it still has more information than any other source.

Federal law requires DHS to respond to inquiries from state election officials on the citizenship status of any registered voter. Specifically, 8 U.S.C. § 1373(c) provides that:

[DHS] shall respond to an inquiry by a Federal, State, or local government agency seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

Since citizenship is a requirement of eligibility to vote in state and federal elections, an inquiry seeking to verify citizenship clearly falls “within the jurisdiction” of state and local election officials. Election officials should routinely verify with DHS the citizenship of every registered voter in their state.

In fact, DHS has a database that could be used for that purpose: the Systematic Alien Verification for Entitlement (SAVE) program, which the department describes as “a fast, secure, and reliable online service that allows federal, state, and local benefit-granting agencies to verify a benefit applicant’s immigration status or naturalized/derived citizenship.” State agencies currently use the SAVE program to determine whether an individual is entitled to receive public assistance benefits, but there is no reason why it could not also be used to determine citizenship status for voting eligibility.

Jury lists are another source of information that states should use to verify the citizenship of registered voters. State and federal courts use state voter registration lists and/or state driver’s license lists to create their lists of potential jurors. U.S. citizenship is a requirement for service on a jury in both state and federal courts. When an individual is called for jury duty, whether in state or federal courts, that person must complete a form under oath that asks whether he or she is a U.S. citizen. Those who answer “no” are excused from jury duty.

In 2005, the U.S. Government Accountability Office issued a report, Elections: Additional Data Could Help State and Local Elections Officials Maintain Accurate Voter Registration Lists. The report analyzed data from federal courts in seven states and found that hundreds of individuals had been excused from jury duty in four federal district courts because they were not U.S. citizens. None of this information was relayed back to the state election officials who had provided the names of potential jurors. Similarly, most state court clerks do not forward information back to election officials about individuals called for jury service in state courts who are excused because they are not citizens.

State courts should be required to notify election officials when an individual who is called for jury duty from the voter registration list is excused because he or she is not a U.S. citizen. Additionally, states should make requests from federal courts for a state’s voter registration or DMV driver’s license list to use for federal juries contingent on an agreement by the federal courts to notify state election officials if an individual is excused from jury duty because he or she is not a U.S. citizen.

Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508, provides that states must allow “any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write [to] be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.” Clearly, such a voter is entitled to whatever assistance he or she needs to read, understand, and complete a ballot.

However, states must guard against “assistance” that intimidates, coerces, or pressures that voter to vote a particular way instead of simply helping the voter to fill out the ballot according to that voter’s own choices. The targets of this type of illegal assistance are often the elderly, the disabled, the illiterate, and those for whom English is a second language. In 2020, for example, Delores “Dee” Handy was convicted in Acadia Parish, Louisiana, for filling out a ballot for the candidate she wanted rather than the candidate chosen by the elderly voter Handy was supposedly assisting. Similarly, Facunda Garcia and almost half a dozen other defendants were convicted of providing illegal assistance in a 2012 Democratic primary election in Cameron County, Texas, where the defendants were filling out ballots without the permission of voters.

To protect voters and make it easier for election and law enforcement officials to investigate this type of illegal assistance, states should require that any individual assisting a voter must complete a form providing his or her identity and contact information as well as the reason for providing assistance. Such a requirement would not violate the Voting Rights Act.

Unfortunately, cybercrime and successful hacks of computer networks—even sophisticated networks—are commonplace today. In 2020, various news sources reported that hackers had successfully breached computer networks at the Pentagon, the State Department, the Department of Homeland Security, the Treasury Department, and the Commerce Department. In 2015, the U.S. Office of Personnel Management announced that it had been the target of a successful data breach that compromised more than 22 million federal personnel records—the largest data breach of government data in history.

Cyberattacks are such a potentially serious threat to elections that DHS’s Cybersecurity and Infrastructure Security Agency has made protecting our election system one of its “highest priorities,” declaring that the “American people’s confidence in the value of their vote is principally reliant on the security and resilience of the infrastructure that makes the Nation’s elections possible.”

Given the constantly evolving technological threats, no state should allow any electronic voting machines in polling locations to be connected to the Internet. Furthermore, the computers used by local and state election offices to tabulate results should be stand-alone computers that are not connected to the Internet or any government-wide network that could allow hackers to interfere with the vote count.

The counting of ballots, including absentee and early votes, should not begin until the polls close at the end of Election Day. The premature release of election results before the polls are closed, whether done intentionally or through negligence, could affect the outcome of an election. It could discourage voters who have not already voted from doing so. If secretly released by a local official to a campaign or candidate, this information could provide that candidate with inside information not available to other candidates that could be used to change the results of the election by readjusting the candidate’s campaign strategy and get-out-the-vote tactics. If a state insists on beginning the count before Election Day, it should ban the release of results until the evening of Election Day and should clearly define the penalties for violations of that ban.

To provide results as quickly as possible, ensure that election observers are able to be present with no gaps in coverage, and maintain public confidence that the process is free of irregularities or malfeasance, states should require that the counting of ballots continue without pause until all votes have been tabulated, unless extreme circumstances require suspension of the vote count and, in that case, only after notice to the public.

Under the Constitution, state legislatures have the primary authority for setting the rules for elections and election officials, not governors and other executive branch officials and not judges. Art. 1, § 2 says that the “Times, Places and Manner of holding” congressional elections “shall be prescribed in each State by the Legislatures” unless Congress steps in. When it comes to presidential elections, Congress can set the date for the election, but state legislatures are given the power under Art. II, § 1, cl. 2 to designate the “Manner” in which presidential electors are chosen.

Yet before the 2020 election, many state executive branch officials, sometimes in response to collusive lawsuits, unilaterally waived or otherwise altered state election laws without seeking or obtaining the approval of state legislatures.

To protect their constitutional authority, state legislatures should ensure that they have legal standing—either through a specific state law or through a constitutional amendment if one is required—to sue state officials who make or attempt to make unauthorized changes in state election laws. For example, if a secretary of state extends the deadline set by state law for the receipt of absentee ballots, the legislature of that state should have legal standing to contest this unilateral change that overrides state law. Similarly, states should also require that the state legislature be given the opportunity to approve or disapprove of any settlement proposed in litigation that would change or alter a state election law.

Finally, as an additional check against the unwillingness of government officials to comply with state election laws as enacted by the state legislature, voters should be given standing to file a lawsuit against any state or local official who fails to abide by or enforce a state election law.

In 1972, the U.S. Supreme Court held in Dunn v. Blumstein that the maximum amount of time that a state could require for a resident to register to vote is 30 days before Election Day, which would give state election officials sufficient time to check the registration to prevent fraud, including “dual registration and dual voting.”

Same-day voter registration, which enables an individual to register and immediately vote on Election Day, should not be allowed because it denies election officials the opportunity to verify the accuracy of the registration information contained on a registration form. Once that individual has voted, it will be too late to retrieve and invalidate that ballot if an election official subsequently determines that the person casting that ballot was ineligible to vote. This is especially problematic in states that do not require an ID to vote, because it gives individuals the ability to perpetrate multiple acts of fraud by registering and voting in several different polling locations on Election Day.

Additionally, same-day registration can cause problems in jurisdictions that use paper ballots. Election officials decide how many ballots to provide to a polling place based on the number of registered voters. With same-day registration, election officials cannot know how many ballots each polling place should have and therefore risk running out of ballots on Election Day if large numbers of individuals show up to register and vote. State Senator Mary Kiffmeyer, Minnesota’s former secretary of state, has compared same-day registration to holding a dinner party and not knowing how much food to buy because no one sent an RSVP—some precincts will run out of ballots, and others will be overstocked. Voters may get frustrated and leave, failing to exercise their franchise.

States should not implement automatic voter registration by registering individuals to vote, based on information obtained from the DMV or other state agencies or public assistance offices, without asking their permission or getting their consent. Such a system frequently results in the registration of large numbers of ineligible individuals such as felons and non-citizens as well as multiple registrations of the same individual when that individual interacts with different state agencies. Moreover, because many individuals have property and other interests in more than one state, automatic registration may result in individuals becoming registered to vote in multiple states.

States should comply with the National Voter Registration Act (52 U.S.C. Ch. 205) and provide registration opportunities at state agencies. No one should be automatically registered, however, without their consent or knowledge.

In 2020, private donors gave hundreds of millions of dollars to local election officials in what appears to have been a carefully orchestrated attempt both to convert election offices into get-out-the-vote machines and to insert political operatives inside election offices to influence the outcome of the election. This type of private funding was unprecedented, and research by the Capital Research Center shows that it was directed in a highly partisan manner to heavily Democratic urban jurisdictions.

In addition to raising clear conflicts of interest and other ethical concerns, such private funding builds structural, partisan bias into an election whether the funding is coming primarily from Democratic or Republican donors. It also violates principles of equal protection and the “one person, one vote” standard because it may lead to unequal opportunities to vote in different areas of a state.

To prevent private interests from achieving their political goals and agendas by leveraging or attempting to manipulate the election administration powers of state and local governments, states should prohibit election officials and election agencies from receiving private funding from any outside organizations, campaigns, political parties, or individual donors.