Concerns about the integrity of the voting process reached new heights after the 2020 presidential elections. One focus of these concerns was the system used to count votes. How is the vote-counting process administered, and who oversees the process? What safeguards exist to make sure all votes are legitimate and accurately counted? Does the system ensure that all valid votes are counted?
What laws govern the conduct of elections in the United States?
Elections are governed by a complex system of laws and regulations, most set by state and local governments. The U.S. Constitution gives states the power to determine the “times, places and manner of holding elections for Senators and Representatives.” As a result, states and localities can establish their own rules and procedures for conducting elections. This practice leads to significant variation in election rules across the country.
At the federal level, Congress has passed legislation to protect voters’ rights and help ensure elections’ fairness. For instance, the Voting Rights Act of 1965 prohibits racial discrimination in voting procedure, and the Help America Vote Act of 2002 provided states and localities with guidelines for voting systems standards and additional funding to update voting technology. The Supreme Court has also played a major role in shaping elections through its rulings on election-related cases. For example, in Bush v. Gore (2000), the Court ruled that the state of Florida’s method of recounting ballots in the 2000 presidential election was a violation of the Equal Protection Clause of the Fourteenth Amendment.
Who oversees elections?
Elections are supervised by local and state election officials. The National Voter Registration Act of 1993 (NVRA) mandates that each state designate a chief election official to oversee elections in each state. However, the primary authorities differ from state to state. Elections can be run by a single individual or department, a board or commission of elections, or a combination. These officials maintain voter registration lists, establish polling locations, train poll workers, and are responsible for ensuring the proper counting and certification of votes. Most states and localities require that election officials be appointed with an equal number of registered Democrats and Republicans.
At polling places, the process of receiving votes is typically handled by poll workers, citizens who volunteer for these duties. They are responsible for confirming voter identification and proper districting, providing ballots, and assisting with any questions or issues that arise.
How are votes cast?
The most traditional method for voting is in-person with a paper or electronic ballot at a polling place on Election Day. The four most common types of voting equipment that are used to cast and tabulate votes are:
- Electronic devices, such as touch screens, allow citizens to vote by pressing buttons.
- Electronic devices that also generate a paper record that a voter can use to verify their choices
- Paper ballots that are scanned
- Paper ballots that are hand-counted
As the figure shows, most polling stations use paper ballots with a scanner, and the least common are electronic devices.
Many states now offer early voting, allowing voters to vote in person at designated locations before Election Day. Additionally, all states offer some form of absentee voting, allowing voters to receive a ballot in the mail, fill it out, and return it by mail or at a designated drop-off location. The rules governing absentee or mail-in voting vary by state; for more details, see our Policy Brief on Voting by Mail, linked at the end of this document.
How are votes counted?
The process of counting votes also varies by state and can depend on the voting method. For in-person voting, the votes are typically counted by machines at the polling station. These machines read the ballots and tally the votes, with the results then transmitted to the local election office for aggregation and reporting. The polling stations are required to preserve each paper ballot or record to be audited later as a check on the integrity of the election.
Most communities require bipartisan staffing of all tasks where vote fraud could occur – for example, physical ballots (or machine totals) are counted separately by two workers, one Republican and one Democrat, and ballots and paperwork are delivered to a central location by a bipartisan team. Alternatively, observers can monitor the process (live or via the Internet) at polling stations and the central processing location. Additionally, professional staff are supposed to conduct post-election audits to verify the accuracy of the vote count.
For mail-in and absentee ballots, the counting process is more complex. First, these ballots are supposed to be verified to ensure they are cast by eligible voters. This process typically involves checking the voter’s information against the state’s voter registration database and inspecting the ballot for any signs of tampering. Again, standard practice is to use bipartisan teams to review ballots. Once the ballots have been verified, they are opened and counted, often by machines similar to those used for in-person voting.
How much fraud occurs in US elections?
As a percentage of overall voter activity, voter fraud is rare in the United States, although cases do surface across the country. In 2020, there were only 17 criminal convictions of voter fraud across the United States. By contrast, over 155 million votes were cast in the 2020 presidential election, for a fraud rate of about one case per 10 million votes.
One of the reasons voter fraud is not a common practice is the potential of an individual being prosecuted. The probability that a single person’s vote is pivotal in an election is negligible, while the penalty for voter fraud can be five years in prison and a $10,000 fine. What might be considered attempts at voter fraud are usually simply clerical errors and typos. However, in rare instances, cases have been brought against those conducting an election or backing a specific candidate, as experienced recently in the 2023 mayoral race in Bridgeport, Connecticut. Furthermore, in most cases, when the media presents headlines about dead people voting or people double voting, usually there is a clerical error, and the double vote did not actually occur – for example, someone cast an early vote and died before election day.
However, to say that vote fraud is rare does not mean that the state and local government systems always operate as designed. For example, in 2022, New York City settled a federal lawsuit related to voter registration clean-up, removing 441,083 ineligible names from voter rolls. New York City acknowledged it had removed a total of only 22 names during a six-year period, in a city of over 5.5 million voters. The NVRA requires states to “conduct a general program that makes a reasonable effort to remove” from the rolls “the names of ineligible voters” who have died or changed residence. While this example of a lack of voter roll maintenance in New York City doesn’t necessarily directly translate into improper counting of votes, for some citizens, it does put the system, people, and processes governing such counting of votes into question.
How could the system be improved?
Potential changes offered as possible improvements from both sides of the political aisle include expanding early voting and making Election Day a national holiday, as well as measures to improve the security and integrity of elections, such as replacing digital-only voting machines, implementing more rigorous post-election audits and establishing consistent guidelines regarding ID requirements for in-person voting.
However, any changes to the election system must be carefully considered to avoid unintended consequences. For example, expanded mail-in voting could increase voter access, but it could also increase the risk of errors or fraud if not properly managed. Similarly, while upgrading voting machines could improve the accuracy and security of vote counting, it could also introduce new problems if poll workers are not adequately trained to use them.
Further Reading
Brennan Center for Justice. (n.d). Voter Intimidation and Election Worker Intimidation: A Resource Guide. http://tinyurl.com/22sbkyvw, accessed 12/12/23.
National Conference of State Legislatures. (n.d). Election Administration at State and Local Levels. http://tinyurl.com/22sbkyvw, accessed 12/12/23.
Policy vs Politics Policy Brief: Voting By Mail (link TBD)
Sources
What laws govern the conduct of elections in the United States?
Justia. (2000). Bush v. Gore, 531 U.S. 98. http://tinyurl.com/bde75459, accessed 12/12/23.
Library of Congress. (n.d.) Federalist Papers: Primary Documents in American History. http://tinyurl.com/56dv7fp8, accessed 12/12/23.
Oyez. (n.d.) South Carolina v. Katzenbach, 383 US 301 (1966). http://tinyurl.com/2ndvzynd, accessed 12/12/23.
Oyez. (n.d.) Shelby County v. Holder, 570 US 529 (2013). http://tinyurl.com/5e6yuupb, accessed 12/12/23.
Who oversees elections?
Brennan Center for Justice. (n.d). Voter Intimidation and Election Worker Intimidation: A Resource Guide. http://tinyurl.com/22sbkyvw, accessed 12/12/23.
Miller, L. (2022). Arizona Election Officers: Rules and Constraints. Brennan Center for Justice. http://tinyurl.com/2fj76k8v, accessed 12/12/23.
National Conference of State Legislatures. (n.d). Election Administration at State and Local Levels. http://tinyurl.com/22sbkyvw, accessed 12/12/23.
U.S. Election Assistance Commission. (2023). 2022 EAVS Report. Retrieved July 25, 2023, from http://tinyurl.com/2kycyh63, accessed 12/12/23.
United States Election Assistance Commission. (2022). Who is in charge of elections in my state? http://tinyurl.com/4976ex8j, accessed 12/12/23.
How are votes cast?
National Conference of State Legislatures. (n.d). Voter ID. http://tinyurl.com/ye29nb7h, accessed 12/12/23.
National Conference of State Legislatures. (n.d). Voting Outside the Polling Place. http://tinyurl.com/494428kf, accessed 12/12/23.
U.S. Election Assistance Commission. (2023). 2022 EAVS Report. http://tinyurl.com/2kycyh63, accessed 12/12/23.
How are votes counted?
PBS. (n.d). How the AP counts the votes on election night. http://tinyurl.com/2s43r78k, accessed 12/12/23.
U.S. Election Assistance Commission. (2023). 2022 EAVS Report. http://tinyurl.com/2kycyh63, accessed 12/12/23.
How much fraud occurs in US elections?
Brennan Center for Justice. (n.d). Debunking the Voter Fraud Myth. http://tinyurl.com/23berz22, accessed 12/12/23.
Brennan Center for Justice. (n.d). The Truth About Voter Fraud. http://tinyurl.com/55uwz7cy, accessed 12/12/23.
The Heritage Foundation. Election Fraud Cases. (2023). http://tinyurl.com/34fhfu7w, accessed 11/28/23.
Eggers, A., Garro, H., and Grimmer, J. (2021). No evidence for systematic voter fraud: A guide to statistical claims about the 2020 election. Edited by Kenneth Shepsle. Proceedings of the National Academy of Sciences. Vol. 118. No. 45. http://tinyurl.com/yzrma9nn, accessed 12/12/23.
How could the system be improved?
National Conference of State Legislatures. (2023). Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options. http://tinyurl.com/494428kf, accessed 12/12/23.
West, D. M. (2014). Make Election Day a national holiday. Brookings. http://tinyurl.com/rwe6csze, accessed 12/12/23.
This policy brief was researched in June 2023 by Policy vs Politics Interns Eli Oaks and Julia Acevedo, drafted by Team Lead Mary Adams, and revised by Dr. Nate Birkhead and Dr. William Bianco with the assistance of subject matter expert Professor Cory Colby.