Ep. 3: Derek Tisler, Elections and Government Counsel, Brennan Center for Justice

The Ballot Box Briefing is a weekly segment on Sirius XM’s The Briefing, that examines the issues and storylines at the heart of running an efficient and accurate election. Guests include election administrators, local, state, and federal officials, cybersecurity experts, legal analysts, and members of BPC’s Democracy Program.

In Episode 3, Derek Tisler from the Brennan Center for Justice talks about the resources elections officials need to keep elections systems current, the importance of paper ballots, and how election officials are preparing for the presidential election. 

Edited Transcript

00:00 Steve Scully: And this segment every Friday is a way to look at elections in the campaign process and the voting process. A study by the Brennan Center, which has the following conclusion, quote a number of states using electronic voting and tabulation systems that are at least a decade old. Many no longer even manufactured, some election officials reporting that they must go on eBay to find replacement parts, which in itself poses a threat obviously, and registration databases are antequated. Derek Tisler is joining us from New York. He serves as a counsel at the Brennan Center for Justice and the Democracy Program there. Derek, welcome to the program. Thank you very much for being with us. 

00:42 Derek Tisler: Of course, thanks so much for having me on. 

00:44 SS: These seem like easy fixes, but I think part of the problem is that state and local governments are not spending the money they need to make sure that elections are secure and sound. Is that fair? 

00:56 DT: That is fair to say – it is at the end of the day, it’s a resource challenge. [01:01] For a long time, elections have gone underfunded. And that problem only gets worse as more and more goes into elections. The voting period gets longer. There are more options to vote and ultimately more technology gets added to the process. And this technology has done a lot of great things to improve security, accessibility, efficiency. But there’s a real cost, to keep everything upgraded to keep everything up to date and to keep everything secure. [01:29] So at the end of the day it is a resource challenge more than anything. 

01:34 SS: So Derek, as you study this, where are some of the best practices, what can some states or communities learn from other locales? 

01:45 DT: So the best practice is, you know, for one, it is of course being aware of funding needs, right? That’s not possible everywhere, of course, not everybody is going to be able to go to their county, go to their state legislature and get the sort of resources that they need. So the next step is really understanding what could go wrong on Election Day. This is something that, you know, all of the best election officials are constantly doing, the sort of contingency planning, resiliency planning. OK, it’s possible that my machines may fail on Election Day. How can I respond? How can I make sure that voters will continue to cast ballots that we’re able to keep lines down and at the end of the day that we’re going to count every single ballot that gets cast. And so, you know, short of fully replacing your voting machines at the end of the life cycle, fully upgrading your electronic poll books, other technology, the number one thing that all election officials should be doing right now is imagining every possible way that something could go wrong because you know [02:56] more likely than not something is going to go wrong on Election Day. It’s just too big of a logistic undertaking for something to not happen. I’ve heard election officials in larger jurisdictions prepare or compare Election Day to, you know, running hundreds of different weddings at the same time. There’s just too many details happening. So when something does go wrong – are you prepared for it. Do you have a backup plan? Can you put it in place quickly, and can you explain to the public to reassure them that you know, they’re votes will still be counted? [03:29] Go to the polling place, it will be counted at the end of the day. And so that’s the biggest recommendation that we have going into the election year. 

03:37 SS: So let me take that a step further, reminding our listeners we’re talking to Derek Tisler. He is a counsel at the Brennan Center for Justice, the Democracy Program. Every Friday, the ballot box briefing looking at the various issues leading up to the campaign in November and the inauguration next year. When we looked at the 2020 campaign, there are a lot of false allegations about impropriety and to your point, humans are running elections, humans make mistakes, but no evidence of any vast conspiracy. However, there does need to be a sense from the electorate that the elections were fair, safe, sound without any question, any impropriety. How do we get to that point to convince the public that the election was fair and safe and sound? 

04:25 DT: I don’t think there’s an easy one solution here. I think it is going to take a number of things all happening together, you know. There is a certain category of allegations about the 2020 election that are just outright lies, and they’re not attached to any reality that actually happened. And so I think it is going to be difficult to convince those people otherwise when their initial allegation wasn’t based on evidence. In other instances, it’s more of a matter of the public not necessarily understanding how elections work and, and I think this is pretty understandable. Again, [05:01] elections are an incredibly complicated process for most of us, our involvement in that process ends as soon as we feed our ballot into the scanner. We don’t know how it gets counted. We don’t know how those both get aggregated. We don’t know all of the checks that are in place that election officials have to… you know, double checks, account, triple checks, account every other little measure to make sure that they got the right outcome and they’re confident in that outcome. And so I think part of it is certainly a public education challenge. How can election officials explain the process, invite people into the process? [05:40] Because elections do take place in public, under public observation and the part of it is also, and this goes back to the resiliency planning to the extent that they can anticipate where things may go wrong, try to minimize the chance of technical failings, of resource shortages. Anything else that might come up and get a voter to say, hey, maybe this isn’t fair. Those precautions should be happening right now, and when they do need to pivot to plan B, [06:10] Let’s say a scanner breaks down on Election Day and it’s not reading ballots anymore, and so they need to collect the ballots to be scanned in later. You need to be prepared to explain that to the public, it might look off to a voter that they’re putting their ballot in a box instead of in the machine like they do every single year. So how do you explain to them that – this is the procedure, this is the correct procedure. We plan for this, and we are going to count your ballot. So I think at the end of the day it’s going to take a lot of different initiatives working hand in hand to really build that public trust, but it’s careful planning and transparency. [06:50] 

06:51 SS: And even before you go to the polls or mail in your ballot, it’s the issue of registration. The party registration process and the database is collecting the database and making sure that it’s updated and the information is correct. And obviously the technology is there. What more needs to be done in the registration process, Derek? 

07:14 DT: Well for one, you know, you mentioned at the beginning of this conversation that a lot of counties across the country are using voting machines that are well past the suggested life cycle of 10 years or so. And it makes it more likely that there may be an issue with these machines. You know, again, not that would impact the count at the end of the day, but just like any other equipment that we use in our daily life, it might be a little more likely to not start up correctly or fail during the course of an election, whatever it may be. The voter registration process also relies on technology. It relies on computers, and increasingly so, as we increase accessibility with things like online voter registration. And that is also technology that regularly needs to be updated and invested in. When you look across the country, you see that most states are still essentially using the voter registration database that they first started using when federal law first required a voter registration database 20 years ago, right. And in many cases, they have made security upgrades around the edges there to sort of harden the system protect it against cyber attacks. But that is a continuous process that needs to happen. They always need to be thinking about what sort of vulnerabilities may exist and what can we do now to protect the system. That’s the cyber attack side of things. But there’s also just – is our system prepared to keep up with the changing demands of election administration. This is something that happened in Georgia, where they had huge early turn out and the check in process relied on an old voter registration database and it caused lags and it caused long lines. And Georgia has since upgraded that technology. But other states have not necessarily had the resources to do so. So I think very similarly here. It involves upgrading your technology, keeping it secure and constantly refining your processes to make sure they’re keeping up with how elections change. 

09:23 SS: So a final point on that and clearly we’ve come a long way from the hanging chads. Remember that from Bush V Gore in 2000. But the paper back up when it comes to voting. I live in Virginia. I vote in the Commonwealth of Virginia. I submit a paper ballot. If there’s any question about the machine and the calculation of the numbers… How do they go back and check with that paper ballot? What’s the process? 

09:47 DT: Yeah, that process looks a little bit different in every state. I think as you said, this has been one of the most significant improvements in election security that we’ve seen over the last 10 years. We’re down to maybe only a couple of states that will have paperless voting equipment in 2024 and even that is a little bit up in the air on how many of those counties will be able to replace machines before then, [10:13] so the vast majority of voters, you know, well over 90% are going to be either marking their votes directly on the paper or using a machine that records their vote on paper. And as I said, the process for how those paper ballots get checked varies a little bit, state by state. But the basic idea is those ballots are available in most cases. States are checking some sort of sample of those ballots, matching them up with the computer count and saying, OK, we’re getting the same results here, and that gives you confidence that the machines are reading the ballots as intended [10:52] , there are some states that go even further, especially in close elections, to say we’re going to recount all the ballots by hand, and we have that paper count that lines up with that computer count and gives us complete confidence that everything was working as intended. It is such a crucial [safe?] guard for making sure that everything works as intended, and it’s one of the ways in which you know we are much better suited in 2024 than in any recent election that we’ve had. [11:21] 

11:22 SS: Derek Tisler joining us from New York, he’s with the Brennan Center and the Democracy program. Check it out at brennancenter.org. Thank you very much for being with us. 

11:32 DT: Thank you so much.