Cyber-elections and the Minority Voter’s Response

• Publication year: 2002
• Citation: Vol. 4 No. 2002

Allison A. Stacker⁰

I. Introduction

At first thought, Internet voting seems like an inexpensive, convenient and accurate platform for the election process. Given the current inadequacies in access to the Internet, however, remote Internet voting could potentially disenfranchise minorities. Internet voting makes voting more convenient for predominantly white voters and creates a bias that hinders minorities' full participation in the election process.

Many argue that Internet voting would not result in inequalities because it would only be supplemental to traditional voting methods.¹ Some also suggest that any device that improves overall voter turnout generally, necessarily improves voter turnout of minorities.² Statistical data of racially disparate Internet access, however, proves that the digital divide is real and that the use of remote Internet voting, even as a supplement, will actually deny minorities full participation in the political process.³

The response to Internet voting presents a difficult dilemma for the civil rights community. Given the benefits of e-voting, namely convenience and efficiency, "litigating to stop such technological progress seems Paul Bunyan-esque."⁴ Litigation, however, may be the only effective short-term strategy.

Internet voting could be challenged under section 2 of the Voting Rights Act, which prohibits election procedures that (i) dilute minority votes or (ii) that impede full participation in the election process.⁵ While claims of vote dilution are used more often to challenge voting procedures, the legal argument against Internet voting might be better framed as impeding minorities' participation in elections. Internet voting, or e-voting, could do this by making voting more convenient and accessible to the predominately white, Internet-privileged, at the expense of minorities.

While the civil rights community should consider bringing a claim under the Voting Rights Act, the most important strategies for combating vote dilution are long-term.⁶ The use of information technologies to counter numerical disadvantages must be considered.⁷ Specifically, strategies such as assisted voting sites, Internet campaigns, and Internet language translation present the possibility of using cyberspace to gain greater minority representation.

This article presents an overview of Internet voting in Section II, including the types, methods, benefits and risks of e-voting. Section III focuses on defining and analyzing the current digital divide, including the statistical aspects of e-voting and the digital divide, and then provides the basis for a claim under the Voting Rights Act. Section VI examines how such a claim could be brought under the Voting Rights Act and whether section 2 provides a framework for challenging Internet voting. Finally, this article examines other more effective methods by which minorities could overcome the challenges presented by Internet voting.

II. Overview of Internet Voting

A. Types of Internet Voting

Three types of Internet voting are possible. The first method is Internet voting at traditional polling sites.⁸ At the sites, computer voting machines are connected to the Internet and election officials authenticate voter identifications before casting ballots.⁹ The second method is kiosk voting. In this model, voting terminals are located in convenient areas like malls or schools but remain under the control of election officials.¹⁰ The third method is remote Internet voting, the casting of ballots in private places such as homes and offices.¹¹ Remote Internet voting has attracted the most attention and is often considered synonymous with Internet voting. This article focuses strictly on remote Internet voting.

B. Experiments in Internet Voting

During the 2000 elections, a number of states experimented with Internet voting. Arizona held its Democratic primary election over the Internet. Election.com, a New York-based company, conducted the Arizona election in which voters cast ballots from their homes, offices or polling locations.¹² Voters who used the polls could also cast their vote by paper ballot.¹³ Out of 85,970 votes cast in the primary, about half were cast via the Internet from remote locations.¹⁴

Prior to the primary, however, the Voting Integrity Project ("VIP") challenged Arizona's Internet election.¹⁵ VIP's complaint alleged unequal access and discrimination against voters without Internet access.¹⁶ The case was eventually dismissed. The court held that the plaintiffs had "failed to demonstrate that online voting would have a discriminatory effect."¹⁷

Also during the 2000 presidential primaries, voters in three remote districts in Alaska voted via the Internet in the Republican Party's straw poll.¹⁸ In the past, it had been difficult for voters in these areas to participate in a straw poll. VoteHere.Net provided the voting technology and sent eligible voters software for installation on their home computers.¹⁹ Of the 3,100 voters eligible to participate, only 35 cast votes via the Internet.²⁰ The low turnout is attributed to the fact that VoteHere.Net required would be e-voters to download separate software onto their computers.²¹

C. Potential Benefits

Internet voting could bring many benefits to the current election process. Primarily, remote e-voting is convenient. People with Internet access, including the disabled and those overseas, can cast votes without leaving home.²² But the greatest potential benefit of Internet voting would be an increase in voter turnout. With only half of the eligible population voting in the last election,²³ voter turnout is an issue of great interest to policymakers. In December 1999, the White House commissioned the National Science Foundation to conduct a study on Internet voting.²⁴ The National Science Foundation, in turn, funded the Internet Policy Institute ("IPI") to conduct a workshop and produce a report on the effects of Internet voting.²⁵ IPI's report reveals that Internet voting would address two perceived causes of low voter turnout: inconvenience and lack of mobility.²⁶ The convenience and mobility that e-voting would bring to the election process could particularly increase participation in some underrepresented groups such as youth, elderly and persons abroad.²⁷

IPI's report further revealed that, to date, in elections conducted over the Internet, there have been signs of increased voter turnout. For example, the 2000 Arizona Democratic primary saw an increase in voter turnout after allowing votes to be cast remotely over the Internet.²⁸

IPI's report, however, also revealed that there are no assurances that Internet voting will increase overall voter turnout.²⁹ Previous changes designed to make voting more convenient, such as voting-by-mail, simpler registration procedures, and extending voting times, had little effect on the numbers of total voters.³⁰ The report suggests that other social causes, such as apathy or the feeling that voting has little real effect, may contribute more to the decrease in voting than convenience.³¹

D. Security and Privacy Issues

Although not the focus of this article, it is important to be aware that Internet voting poses a variety of security and privacy risks. The potential security dangers include hackers, viruses, and denial of service attacks.³² Poll site and kiosk Internet voting, however, are much less susceptible than remote voting to these attacks because³³ election officials can control and supervise on-site use of voting machine software at poll sites and kiosks.³⁴

In addition to potential attacks, opponents of Internet voting are also concerned with voter privacy. Political scientist Rick Valelly believes that "e-voting will transform voting, an inherently public activity[,] into a private one." ³⁵ Because remote Internet voting will no longer be publicly monitored, it could lead to the possibility of vote selling and coercion.³⁶ Thus, absent a controlled environment, security and privacy risks associated with remote Internet voting are significant.

III. The Digital Divide

A. Introduction

As the Arizona Democratic primary demonstrates, the technology for Internet voting is in place. It will not be long before this technology is readily available as a method of casting ballots.³⁷ When considering the current statistics on the digital divide, however, it is arguable that minority voters will be disenfranchised simply because they do not have access to the technology needed to cast an e-vote. Thus, Internet voting's potential to bring maximum and convenient participation to the election process is limited to the already Internet-connected segment of the population.

If Internet voting were confined to poll sites and kiosks, then the equal access question would be largely resolved. Remote Internet voting could manipulate election outcomes, however, by favoring those already connected to the Internet.

B. Defining the Digital Divide

The phrase "digital divide" has come to represent "any measured difference between the Internet-connected population and the general population at large."³⁸ According to the U.S. Census Bureau, affluent and highly educated adults were more likely to have Internet access at home.³⁹ Two-thirds of adults living in the wealthiest households used the Internet at home compared with only fourteen percent living in low-income households.⁴⁰ Moreover, race was a significant factor in determining who had Internet access. The proportion of Asians and Whites using the Internet at home is more than double that of African American adults.⁴¹ Latinos had even lower home Internet access.⁴²

Though simple economics helped determine which segments of the population have Internet access, race seems to be a greater indicator.⁴³ Combining the factors of economics and race provides an even greater disparity, for among those with incomes of $20,000 or less, Whites are five times more likely to have Internet access at home than Latinos and African...